Jones v. Wal-Mart Corp.

FILED
United States Court of Appeals
Tenth Circuit

October 1, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JESSICA N. JONES,

Plaintiff - Appellant,

v. No. 08-7120
(E.D. Okla. )
WAL-MART CORPORATION, (D.Ct. No. 6:08-CV-00411-RAW)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before HARTZ, EBEL, and O’BRIEN, 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. The case is therefore

ordered submitted without oral argument.

Jessica Jones, appearing pro se, 1 appeals from the district court’s dismissal

*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
1
We liberally construe pro se pleadings. See Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
of her wrongful termination claims brought under 42 U.S.C. § 2000e et seq. (Title

VII), 42 U.S.C. § 1981 and 42 U.S.C. § 1983. We affirm.

I. BACKGROUND

Jones, an African-American, filed a pro se complaint claiming she was

harassed by a Caucasian employee, Mrs. Teague, while she was employed at Wal-

Mart Stores East, L.P. (Wal-Mart). Teague allegedly called Jones names and

criticized her about her weight. Although she reported the harassment to

management, the situation did not change. Eventually, Jones and Teague got into

a fight which Jones claims Teague provoked. Wal-Mart terminated Jones’

employment on August 6, 2008, but did not terminate Teague. Jones’ complaint

alleges her termination violated Title VII, 42 U.S.C. § 1983 and 42 U.S.C.

§ 1981.

Wal-Mart filed a motion to dismiss all of Jones’ claims. It argued Jones’

Title VII claims should be dismissed without prejudice because she failed to

establish the court’s jurisdiction by first filing her claims with the Equal

Employment Opportunity Commission (EEOC) or the Oklahoma Human Rights

Commission (OHRC) as required under 42 U.S.C. § 2000e-5(e)(1). Wal-Mart

also requested her § 1981 claims be dismissed without prejudice for purposes of

judicial economy so that Jones could bring both her Title VII and § 1981 claims

after she exhausts her Title VII administrative remedies. Wal-Mart asked that

Jones’ § 1983 claims be dismissed with prejudice because she failed to allege

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Wal-Mart was a state actor or was acting “in concert with the state.” (R. Vol. 1 at

14.)

The district court ordered the parties to exchange and file initial disclosures

pursuant to Rule 26 of the Federal Rules of Civil Procedure and to file a Joint

Status Report with the court no later than December 17, 2008. It also set a status

and scheduling conference for December 22, 2008. Jones failed to adequately

participate in the preparation of the Joint Status Report and failed to file or

exchange initial disclosures. She did not appear at the scheduling conference.

The district court granted Wal-Mart’s motion. It dismissed without

prejudice Jones’ Title VII claims for her failure to file an administrative charge

with the EEOC or the OHRC. It dismissed Jones’ § 1983 claims with prejudice

because her complaint did not allege Wal-Mart was a state actor or that its alleged

wrongdoing had sufficient nexus to state action to state a § 1983 claim. Finally,

the district court dismissed without prejudice Jones’ § 1981 claims due to her

failure to comply with the court’s orders. 2 Jones filed this pro se appeal.

2
“[T]hat a dismissal was without prejudice does not necessarily make it non-final
under section 1291.” Moya v. Schollenbarger, 465 F.3d 444, 448 (10th Cir. 2006). “If it
is clear that the plaintiff may not start over again with a properly drawn complaint,
because of limitations problems or otherwise, the action is treated as final and the order is
appealable.” Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir. 1979). Here, it is clear Jones’
may not start over again with a properly drawn complaint. “[A] district court order
dismissing a complaint for lack of prosecution, [is] a matter going to the merits of
appellant's complaint itself rather than a procedural problem which amendment of a
complaint might rectify.” Moya, 465 F.3d at 449 (quotations omitted). In addition, it has
been more than 300 days since Jones was fired, the time limit for filing a charge with the
EEOC. See Croy v. Cobe Lab., Inc., 345 F.3d 1199, 1202 (10th Cir. 2003).

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 II. DISCUSSION

“We review a dismissal for lack of subject-matter jurisdiction de novo,

accepting the district court's findings of jurisdictional facts unless they are clearly

erroneous.” June v. Union Carbide Corp., 577 F.3d 1234, 1238 (10th Cir. 2009).

The court’s decision is well–supported in case law. See Shikles v. Sprint/United

Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (exhaustion of administrative

remedies is a jurisdictional prerequisite to suit under Title VII).

Similarly, “[w]e review de novo the district court's dismissal of a complaint

under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. We must accept all the

well-pleaded allegations of the complaint as true and must construe them in the

light most favorable to the plaintiff.” Jojola v. Chavez, 55 F.3d 488, 490 (10th

Cir. 1995) (quotations and citations omitted). “Dismissal is only appropriate

when the plaintiff can prove no set of facts to support a claim for relief.” Id.

Again, the district court’s dismissal of her § 1983 claims was based on well-

established Tenth Circuit precedent. See id. at 492 (“[P]rivate conduct that is not

fairly attributable to the state is simply not actionable under § 1983.” (quotations

omitted)).

Finally, “[t]he Federal Rules of Civil Procedure authorize sanctions,

including dismissal, for failing to appear at a pretrial or scheduling conference,

see Fed. R. Civ. P. 16(f) and 37(b)(2)(C), and for failing to comply with court

rules or any order of the court, see Fed. R. Civ. P. 41(b).” Gripe v. City of Enid,

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Okla., 312 F.3d 1184, 1188 (10th Cir. 2002). The courts entertain “very broad

discretion to use sanctions where necessary to insure . . . that [parties and their

lawyers] fulfill their high duty to insure the expeditious and sound management of

the preparation of cases for trial.” Mulvaney v. Rivair Flying Serv., Inc. (In re

Baker), 744 F.2d 1438, 1440 (10th Cir.1984) (en banc). “We review for an abuse

of discretion the district court’s decision to impose the sanction of dismissal for

failure to follow court orders and rules” Gripe, 312 F.3d 1188; see also

AdvantEdge Bus. Group L.L.C. v. Thomas E. Mestmaker & Assoc., 552 F.3d 1233,

1236 (10th Cir. 2009). “When dismissing a case without prejudice, a district

court may, without abusing its discretion, enter such an order without attention to

any particular procedures.” AdvantEdge, 552 F.3d at 1236.

Jones’ appellate brief contains no argument, no citations to the record and

no citation to authority relevant to the court’s ruling as required by Rule 28(a)(9)

of the Federal Rules of Appellate Procedure. Instead, her appellate brief merely

alleges the district court “didn’t hear the case because their [sic] racist, and favor

big company”s [sic][.]” (Appellant’s Br. at 4.) This scurrilous allegation has no

basis. She also claims the judge wrongly dismissed her § 1981 claim without

prejudice because “the judge could have had a scheduling conferen[c]e with us

not meeting in chambers.” Id.

“While we of course liberally construe pro se pleadings, an appellant's pro

se status does not excuse [her of] the obligation . . . to comply with the

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fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). “[A]lthough we

make some allowances for the pro se plaintiff’s failure to cite proper legal

authority, [her] confusion of various legal theories, [her] poor syntax and

sentence construction, or [her] unfamiliarity with pleading requirements, the court

cannot take on the responsibility of serving as the litigant's attorney in

constructing arguments and searching the record.” Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quotations and citations

omitted). “[E]ven issues designated for review are lost if they are not actually

argued in the party’s brief.” Phillips v. Calhoun, 956 F.2d 949, 954 (10th

Cir.1992). Jones offers no explanation why she did not appear pursuant to the

court’s scheduling order. Consequently, she has waived her argument and the

district court did not abuse its discretion in dismissing her claims without

prejudice. See AdvantEdge, 552 F.3d at 1236.

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

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