FILED
United States Court of Appeals
Tenth Circuit
February 4, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SONJA J. PALMER,
Plaintiff-Appellant,
v. No. 07-1309
(D.C. No. 05-cv-00082-WYD-MEH)
DENVER HEALTH AND HOSPITAL (D. Colo.)
AUTHORITY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and MURPHY, Circuit Judges.
In this employment discrimination case, plaintiff Sonja J. Palmer,
appearing pro se, appeals the district court’s grant of summary judgment in favor
of defendant Denver Health and Hospital Authority. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff is a former employee of defendant Denver Health and Hospital
Authority, and she filed suit against defendant under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that defendant
discriminated against her based on her race (African-American) and gender and
unlawfully retaliated against her when it terminated her employment and engaged
in other discrete acts of discrimination. 1 On April 30, 2007, after conducting a
hearing on the matter which plaintiff attended by telephone and after having
previously dismissed certain of plaintiff’s claims under Fed. R. Civ. P. 12(b), the
district court entered a very thorough and detailed sixteen-page order granting
defendant summary judgment on all of plaintiff’s claims. See R., Doc. 112. In
doing so, the court rejected the recommendation of the magistrate judge that
summary judgment “be granted on all remaining clams in this action, with the
exception of Plaintiff’s claim of retaliation based on adverse employment actions
occurring after September 29, 2004.” Id., Doc. 97 at 14. Specifically, the court
reasoned as follows:
Defendant filed its Motion for Summary Judgment on October
13, 2006 . . . . As mentioned above, [the magistrate judge]
recommended that all claims be dismissed pursuant to Defendant’s
Motion for Summary Judgment except for the Retaliation claim based
on adverse employment actions occurring after September 29, 2004.
This recommendation was based on [the magistrate judge’s] finding
1
In the proceedings before the district court, plaintiff also alleged that
defendant subjected her to a hostile work environment. Plaintiff has abandoned
that claim in this appeal, however, and we therefore do not need to consider it.
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that there existed an issue of triable fact regarding whether or not
Defendant’s proffered explanation for discharging Plaintiff was a
pretext for retaliation. For the reasons below, I disagree in part with
[the magistrate judge’s] Recommendation. Contrary to the
Recommendation, I find that Plaintiff fails to bring forth any
admissible evidence that Defendant’s reasoning behind her
termination [i.e., “selling DVD’s as a personal business in the
workplace during working time” and thereby violating defendant’s
workplace rules pertaining to solicitation/distribution and use of
electronic mail, see R., Doc. 82, Ex. A-18] was a pretext for
retaliation. Accordingly, Defendant’s Motion for Summary
Judgment is granted as to all claims.
Id., Doc. 112 at 3.
The district court subsequently entered a judgment in favor of defendant on
May 1, 2007. Id., Doc. 113. On May 30, 2007, more than ten days after the
district court entered its judgment, plaintiff filed a motion asking the court to
reconsider its grant of summary judgment. The district court correctly treated
plaintiff’s motion as a motion for relief from judgment under Fed. R. Civ. P.
60(b) and denied the motion in an order it entered on July 9, 2007, reasoning as
follows:
As to final judgments, the Tenth Circuit “construe[s] a motion
for reconsideration in one of two ways.” Hawkins v. Evans, 64 F.3d
[543, 546 (10th Cir. 1995)]. “If the motion is filed within ten days of
the district court’s entry of judgment, the motion is treated as a
motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).”
Id. (quotation omitted). “Alternatively, if the motion is filed more
than ten days after the entry of judgment, it is considered a motion
seeking relief from the judgment under Fed. R. Civ. P. 60(b).” Id.
(quotation omitted). In the present situation, Plaintiff filed her
Motion for Reconsideration on May 30, 2007, well over ten days
from when the [judgment] was issued. Accordingly, Plaintiff’s
motion will be construed as a motion seeking relief from judgment
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under Fed. R. Civ. P. 60(b). There are three major grounds that
justify reconsideration of a motion: (1) an intervening change in the
controlling law, (2) the availability of new evidence, and (3) the need
to correct clear error or prevent manifest injustice. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). Thus, “a
motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law.”
Id. at 1012.
In the case at hand, Plaintiff first argues that this Court
misapprehended the facts and should not have dismissed her
discrimination claim for Defendant’s failure to promote her as
untimely. As explained below, I find that even if Plaintiff’s claim
for discrimination based on Defendant’s failure to promote her was
not untimely, she has failed to demonstrate that there is a genuine
issue of material fact as to whether or not Defendant’s reasons for
[its] decision to not promote Plaintiff are pretextual. As for
Plaintiff’s other claims, she has not advanced any change in the law
or newly discovered evidence. Rather, Plaintiff argues that she has
now organized the evidence in a way that will demonstrate the
Court’s Order was in error. To the contrary, I find that nothing in
Plaintiff’s Motion for Reconsideration or attached exhibits
demonstrate that this Court erred in dismissing Plaintiff’s claims on
summary judgment.
R., Doc. 125 at 2-3.
On July 30, 2007, plaintiff filed her notice of appeal, stating that she was
appealing “from the Summary Judgment and Reconsideration orders entered in
this action on the 9th day of July, 2007.” Id., Doc. 127. However, because
plaintiff failed to file her motion for reconsideration within ten days of the entry
of the district court’s judgment (as noted above, the judgment was entered on
May 1, 2007, and plaintiff did not file her motion for reconsideration until May
30, 2007), the thirty-day period for appealing the judgment was not tolled by Fed.
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R. App. P. 4(a)(4)(A)(iv) or (vi), and it therefore expired before plaintiff filed her
notice of appeal. Cf. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241-42
(10th Cir. 2006) (holding that an untimely Fed. R. Civ. P. 59(e) motion did not
toll thirty-day period for filing an appeal regarding underlying summary judgment
order).
As a result, we lack jurisdiction to consider plaintiff’s appeal from the
district court’s summary judgment order and related judgment, and this appeal
thus concerns only the order entered by the district court on July 9, 2007, denying
plaintiff’s motion for reconsideration. Id. Further, we treat that order as a denial
of a motion for relief from judgment under Fed. R. Civ. P. 60(b), and “[w]e
review the district court’s denial of a Rule 60(b) motion for an abuse of
discretion.” Id. at 1242. “[I]n determining whether a district court abused its
discretion, we are mindful that relief under Rule 60(b) is extraordinary and may
only be granted in exceptional circumstances.” Id. (quotations and alteration
omitted); see also Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289
(10th Cir. 2005) (“Given the lower court’s discretion, the district court’s ruling
[on a Rule 60(b) motion] is only reviewed to determine if a definite, clear or
unmistakable error occurred.”) (quotation omitted).
We see no abuse of discretion by the district court here as plaintiff failed to
support her motion for reconsideration with a showing of exceptional
circumstances. Moreover, we agree with the district court “that Plaintiff did not
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have sufficient evidence of pretext in order for her discrimination and retaliation
claims to survive summary judgment,” and “[t]here is nothing in Plaintiff’s
Motion for Reconsideration which calls for a different result.” R., Doc. 125 at 5.
Accordingly, we AFFIRM the denial of plaintiff’s motion for
reconsideration for substantially the same reasons relied on by the district court in
its order dated July 9, 2007. We DISMISS this appeal as to the order and related
judgment granting summary judgment in favor of defendant.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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