F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 1 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EDWARD J. THOMPSON,
Plaintiff-Appellant,
v. No. 03-1472
(D.C. No. 01-S-21 (OES))
LOUIS CALDERA, Secretary of the (D. Colo.)
Department of the Army,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY , MURPHY , and TYMKOVICH , 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 appeals the district court’s entry of summary judgment for
defendant on plaintiff’s employment discrimination claims and alleged violations
*
This order and judgment is not binding precedent, except under the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.
of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and Privacy Act,
5 U.S.C. § 552a. Based on our review of the parties’ arguments and according
appropriate consideration to plaintiff’s pro se status, we affirm.
Background
Plaintiff was a civilian employee of the Department of the Army at the
former Fitzsimons Army Medical Center (Fitzsimons) in Colorado. Pursuant to a
congressionally mandated closure of the facility in 1995, a three-stage reduction-
in-force (RIF) procedure was conducted to reduce the workforce first from 1300
to about 400, second to 215 and finally to fifteen employees. Although the
primary goal of the RIF was to abolish jobs and close the facility, early retirement
incentives and re-employment efforts were also offered.
The stages of the RIF involved a complicated combination of
recommendations from department superiors, computer programming interfaced
with the civilian personnel record system, and ultimately human decision making
regarding separation or retention of individual employees. The system
incorporated tenure groups and subgroups, permitting certain employees to
“bump” others, depending on grade, type of service, and veteran status, as well as
to “retreat” to other positions, so long as certain job qualifications were met.
Plaintiff was notified in February of 1996 that he would be separated the
following February. That date was extended to April of 1997, but rather than be
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separated, plaintiff retired. He appealed his retirement to the Merit Systems
Protection Board (MSPB), which found his separation was not the result of
discrimination. This decision was affirmed by the Equal Employment
Opportunity Commission’s Office of Federal Operations.
District Court Proceedings
Plaintiff then filed suit in federal court alleging claims of discrimination
(age, race, and gender), 1
violations of the FOIA and the Privacy Act, as well as
claims of prohibited personnel practices in violation of the False Claims Act
(FCA) and Title 5 of the Code of Federal Regulations. Following a successful
partial motion to dismiss, the district court granted defendant’s motion for
summary judgment on plaintiff’s claims of discrimination and alleged violations
of the FOIA and the Privacy Act.
The assigned magistrate judge considered the discrimination claims under
the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green ,
411 U.S. 792, 802-05 (1973), as modified by the RIF framework. See Vol. II,
doc. 164 at 7-8. Thus, plaintiff was required to show that (1) he was within the
protected group, (2) he performed satisfactory work and (3) he was discharged
1
The race and gender claims were asserted under Title VII of the Civil
Rights Act; the age discrimination charge was apparently pursuant to the Age
Discrimination in Employment Act (ADEA).
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despite adequate work, and (4) that the record contained evidence that defendant
intended to discriminate against him in its RIF decision. A plaintiff can meet this
fourth element by showing circumstances under which defendant could have
retained plaintiff, but instead chose to retain a nonprotected employee. See
Juarez v. ACS Gov’t Solutions Group, Inc. , 314 F.3d 1243, 1245-46 (10th Cir.
2003).
The magistrate judge carefully considered the evidence and the parties’
arguments, treating plaintiff’s pro se claims as liberally as possible,
notwithstanding plaintiff’s conclusory allegations and failure to identify a
position he could have been assigned to and that he was qualified for. See Vol.
II, doc. 164 at 9-10. The magistrate judge found that plaintiff had failed to
establish a prima facie case of discrimination, but that even if plaintiff had done
so, he had not presented sufficient evidence of pretext. Id. at 11.
With respect to plaintiff’s FOIA and Privacy Act claims, defendant
conceded a timeliness violation under the FOIA, but noted that no damage remedy
was available. See 5 U.S.C. § 552(a)(B). Nor were damages available for
Privacy Act violations alleging unlawful withholding of records. See 5 U.S.C.
§ 552a(g)(3)(A). Defendant indicated that the agency’s final decision on
plaintiff’s FOIA and Privacy Act requests had ultimately been issued in May of
2002 and that plaintiff had contested certain exemptions raised as part of the final
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decision by appealing to the Department of the Army. The magistrate judge
determined that plaintiff’s arguments regarding any exemptions were not part of
the district court action and that defendant’s disclosure had essentially mooted the
FOIA/Privacy Act claims. Vol. II, doc. 164 at 13-14. Finally, the magistrate
judge recommended overruling plaintiff’s objections to the denial of an earlier
motion for sanctions.
Plaintiff timely objected to the magistrate judge’s recommendation, stating,
inter alia, that plaintiff could not “present facts essential to justify his opposition”
to the motion for summary judgment. Vol. II, doc. 165 at 2. Specifically, he
complained that defendant was refusing to furnish “the complete RIF Retention
Register and associated documents as requested under discovery” and certain
federal regulations. Id. at 3. In addition, he claimed his retirement was
involuntary because it was based on an “affirmative misrepresentation” and
“erroneous information.” Id. at 4. He also listed a series of court orders he
claimed reflected “bias towards the [d]efendant.” Id. at 5.
The district court reviewed the magistrate judge’s recommendation
de novo, after thoroughly reviewing the file. The district court noted that “the
Retention Register was withheld by [d]efendant as a privileged document,”
containing a nearly 500-page listing of all civilian employees at Fitzsimons,
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including “several categories of personal information about each individual.”
Vol. II, doc. 167 at 3. The court further noted that:
The privilege log stated that this was one of a category of
documents which would not be produced to Plaintiff without the
entry of a Confidentiality Order. Rather than approve the proposed
confidentiality order submitted to him by Defendant, Plaintiff chose
to compel the production of those documents on the stated basis that
Defendant’s concern that production would violate the Privacy Act,
5 U.S.C. § 552a, was unfounded.
This motion to compel was stricken by Magistrate Judge
Schlatter as lacking sufficient information to allow the Magistrate
Judge to understand the basis of Plaintiff’s argument. The order
directed Plaintiff to refile the motion with specific citations to the
authority upon which he relied. It does not appear that Plaintiff ever
refiled the motion. Consequently, it appears that Plaintiff never
actually contested Defendant’s use of the privilege log. Similarly,
Plaintiff never appealed to this court in any manner the
nonproduction of the Retention Register or any other document.
Under those circumstances, an extension of the time pursuant
to Rule 56(f) to file his response to Defendant’s motion for summary
judgment would not have made any difference. Time would not have
solved the problem that Plaintiff was not going to get the document
he wanted unless he either signed a confidentiality order or appealed
to this Court regarding production of the document.
In addition, all this is beside the fact that Plaintiff never asked
for a Rule 56(f) extension of time. In the document referred to above
in which he discusses Rule 56(f), he ends the document by asking
that the motion for summary judgment be denied. He does not make
any other requests in that amended response, which merely notes the
unavailability of the Retention Register. Consequently, having failed
to take advantage of these options which were open to him, Plaintiff
had a fair opportunity to oppose Defendant’s motion for summary
judgment.
Id. Vol. II, doc. 167 at 3-4 (footnotes omitted).
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The court also determined that plaintiff had failed to present evidence
showing defendant’s proffered reasons for its employment action were pretextual,
concluding that no rational trier of fact could find for plaintiff based on the
showing made in defendant’s motion for summary judgment and plaintiff’s
response. Id. at 5-6. The court accepted the magistrate judge’s proposed findings
and recommendations and entered summary judgment for defendant.
Appellate Issues
In his opening brief plaintiff contends that (1) the district court erred in
granting summary judgment without allowing him sufficient documents essential
to his opposition; (2) the district court erred in its rulings on evidence and
discovery properly requested under the federal rules of procedure and the FOIA;
(3) the district court erred in refusing his request to maintain a class action; and
(4) other related issues set forth as part of an earlier appeal to this court. Aplt.
Opening Br. at 1.
Plaintiff’s argument section rephrases these issues somewhat to allege the
district court erred by denying him certain discovery information, including his
FOIA request, by refusing his request to maintain a class action, and because of
the alleged bias and prejudice of the district court judge. Id. at 3-4. In his reply
brief, plaintiff asks this court to review “all of the [d]istrict court records”
without further suggesting the purpose of that review. Aplt. Reply Br. at 2.
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He also argues that the retention register is not privileged material and that his
“request to review the complete retention register and related records” does not
violate the Privacy Act. Id. at 3.
Standard of Review
We review the district court’s summary judgment decision de novo,
applying the same standard as the district court. Simms v. Okla. ex rel. Dep’t of
Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999).
Summary judgment is appropriate if “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.”
Fed. R. Civ. P. 56(c).
We examine the record to determine whether any genuine issue
of material fact was in dispute; if not, we determine whether the
substantive law was applied correctly, and in so doing we examine
the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing the motion. However, where
the non moving party will bear the burden of proof at trial on a
dispositive issue[,] that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to that party’s case in
order to survive summary judgment.
Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation omitted).
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Summary Judgment/Retention Register Claims
The crux of plaintiff’s argument appears to be that he was unable to
adequately respond to defendant’s motion for summary judgment without access
to the complete retention register. Plaintiff pursued his administrative remedies
under the FOIA and received his final response in May of 2002. As of October
2002, plaintiff had appealed the Army’s withholding of certain requested
documents under the Privacy Act exemption, 5 U.S.C. § 552(b)(6). We are not
aware of the outcome of the appeal process. Plaintiff did not seek to amend his
complaint to challenge the nondisclosure of this information, but merely
continues to claim he is entitled to it and that defendant’s listing of this material
as privileged is wrong.
In response to a series of interrogatories, defendant submitted a privilege
log containing several categories of documents, including the complete retention
record, the disclosure of which, “absent the entry of a Confidentiality Order,”
defendant deemed would violate the Privacy Act. Vol. II , doc. 117, Ex. A. In
April of 2002, defendant also sent plaintiff a draft proposed confidentiality order,
which defendant stated would be submitted to the court if plaintiff would sign it.
Vol. II, doc. 110 (attachments).
At the May 9, 2002 motions hearing, plaintiff was asked if he would sign
the confidentiality agreement, with the understanding that he would not be
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allowed access to the documents unless he did so. Vol. IV at 20-21. The court
entered an order to this effect on May 13. Vol. II, doc. 109 at 2 (“Plaintiff is
further advised that if he fails to sign the confidentiality agreement, he will not be
allowed to read any documents which have been deemed confidential.”). In
response to the May 13 order, plaintiff complained that the defendant’s proposed
agreement was entitled “Stipulated Protective Order,” not a confidentiality
agreement. Vol. II, doc. 110 at 1. For that reason, plaintiff argued that any
constraints “placed upon him should not be imposed.” Id. , doc. 110 at 2. He did
not, however, appeal the May 13 order to the district court.
Plaintiff then moved to compel production of the documents listed in
defendant’s privilege log, arguing that defendant’s beliefs that disclosure of these
document would violate the Privacy Act were “unfounded.” Id. Vol. II, doc. 117.
The magistrate judge entered an order striking that motion with instructions that
plaintiff could refile it with proper citations to regulations supporting his
arguments. Id. , doc. 120 at 1-2. Plaintiff did not refile the motion, nor did
he appeal to the district court the magistrate judge’s order striking his motion
to compel.
On appeal, plaintiff does not contest the district court’s explanation that the
retention register was listed on defendant’s privilege log and that plaintiff’s
access was conditioned on signing a confidentiality order. Nor does he properly
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challenge defendant’s assertion of privilege, except to continue to seek to compel
production of the entire document. He did not seek review of the magistrate
judge’s order specifically advising him that if he did not sign defendant’s
confidentiality order he would not be able to read the documents. Finally, he has
offered no explanation, either in the district court or in this court, for his refusal
to sign the confidentiality order. Thus, any lack of discovery documents
sufficient to respond to defendant’s summary judgment motion was purely of
plaintiff’s own making. We concur with the district court’s observations, which,
again, plaintiff does not challenge on appeal, that having failed to appeal to the
district court the nonproduction of the retention register and having failed to
move for an extension of time under Fed. R. Civ. P. 56(f), plaintiff had a fair
opportunity to oppose defendant’s motion for summary judgment but failed to
take advantage of those options open to him. Vol. II, doc. 167 at 4. Plaintiff
therefore failed to come forward with specific facts showing a genuine issue for
trial as to those dispositive matters for which he bore the burden of proof. See
Simms , 165 F.3d at 1326. Unsupported conclusory allegations, such as plaintiff’s
argument that once defendant produces the entire RIF retention register, plaintiff
will present evidence to establish his discrimination claim, do not create an issue
of fact. See Matthiesen v. Banc One Mortgage Corp. , 173 F.3d 1242, 1247
(10th Cir. 1999). The district court correctly determined that defendant’s
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summary judgment motion was properly supported and fulfilled the requirements
of demonstrating that no genuine issue of material fact existed and that defendant
was entitled to summary judgment as a matter of law. See Murray v. City of
Tahlequah , 312 F.3d 1196, 1200 (10th Cir. 2002). Finally, plaintiff has failed to
advance any grounds on appeal, accompanied by reasoned argument, questioning
the merits of the court’s ruling on his discrimination claim. See Gross v.
Burggraf Constr. Co. , 53 F.3d 1531, 1547 (10th Cir. 1995). We will not assume
the role of advocate for a pro se litigant. See Hall v. Bellmon , 935 F.2d 1106,
1110 (10th Cir. 1991).
Class Action Claim
Plaintiff next argues that the district court erred in dismissing his class
action claim. The court did so (1) because plaintiff failed to exhaust his
administrative remedies by not including this claim in his administrative EEO
complaint and (2) because plaintiff’s complaint lacked either specific allegations
to support his claim that defendant’s alleged violations affected the rights of
numerous other employees or the prerequisites for a class action claim under
Fed. R. Civ. P. 23. On appeal plaintiff presents no argument beyond that he is
“entitled to pre-certification discovery to establish [a] record that [the] district
court needs to determine whether [the] requirements for [a] class suit have been
met” under Fed. R. Civ. P. 23(a). Aplt. Opening Br. at 3.
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In his objections to the magistrate judge’s recommendations, plaintiff
argued that his attempt to raise the class action question before the administrative
law judge for the MSPB was denied. Vol. I, doc. 43 at 2-3. But plaintiff did not
provide any specific facts to support the procedural requirements of Rule 23(a),
nor did he make any claim of needing “pre-certification discovery.” “Issues not
raised in plaintiff’s objections to the magistrate judge’s recommendation are
waived on appeal.” Fymbo v. State Farm Fire & Cas. Co. , 213 F.3d 1320, 1321
(10th Cir. 2000). More fundamentally, however, “[a] litigant may bring his own
claims to federal court without counsel, but not the claims of others.” Id. The
district court properly dismissed this claim.
Claim of Unconstitutionality (Bias)
Plaintiff filed a pleading entitled “Claim of Unconstitutionality,” purporting
to rely on Colorado Local Rule 24.1(A), which governs a party’s responsibilities
when that party “questions the constitutionality of an act of Congress.” Plaintiff,
however, only took issue with certain rulings (or alleged lack thereof) of the
magistrate judge and district judge and contended that the magistrate judge
abused his judicial power pursuant to 28 U.S.C. § 453. We are not directed to any
act of Congress plaintiff claims is unconstitutional. Plaintiff did not specifically
seek the recusal of the magistrate judge or the district judge pursuant to the
provisions of either 28 U.S.C. § 144 or § 455, nor did he comply with the
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procedural requisites of those statutes. See generally Hinman v. Rogers , 831 F.2d
937 (10th Cir. 1987). He also did not attempt to comply with the procedure for
filing complaints against judges. See 28 U.S.C. §§ 351-364. In any event,
adverse rulings alone are insufficient grounds for disqualification of a judge, “as
is evidence that the judge criticized or was angry with a party.” Lopez v. Behles
(In re Am. Ready Mix, Inc.) , 14 F.3d 1497, 1501 (10th Cir. 1994). To the
contrary, the record reflects that both the magistrate judge and district judge
demonstrated remarkable patience with plaintiff because of his pro se status.
We find this claim to be unsupported and without merit.
Review of Other Court Documents
In his reply brief, plaintiff asks this court to generally review all of the
district court records. We decline to do so, as this court is neither obligated to
sift through the record to find support for plaintiff’s arguments, SEC v. Thomas ,
965 F.2d 825, 827 (10th Cir. 1992), nor to construct his arguments for him. Perry
v. Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999).
Plaintiff’s pro se status does not excuse the obligation of a litigant to
comply with the fundamental requirements of the appellate rules, Ogden v.
San Juan County , 32 F.3d 452, 455 (10th Cir. 1994), nor is it our “burden to
hunt . . . down pertinent materials.” Rios v. Bigler , 67 F.3d 1543, 1553 (10th Cir.
1995). Also, insofar as plaintiff purports to incorporate unspecified “other related
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issues” as set forth in briefs filed in an earlier appeal, No. 03-1117, which was
dismissed for lack of jurisdiction, because he presents no argument in support
of those issues, we decline to review his earlier briefs in search of them. Id.
at 1553.
Conclusion
The district court properly granted defendant’s motion for summary
judgment. We have considered the balance of plaintiff’s arguments and conclude
they are without merit. We have reviewed plaintiff’s submission entitled “Matters
Pertaining to Appellant’s Opening Brief,” which we construe as a motion to
accept his opening brief filed November 3, 2003, as timely filed in this case.
Construed as such, the motion is GRANTED.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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