FILED
United States Court of Appeals
Tenth Circuit
January 5, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ANNE ELIZABETH STANLEY,
Plaintiff-Appellant,
v. No. 08-2306
(D.C. No. 6:07-CV-01013-BB-DJS)
ABACUS TECHNOLOGY (D. N.M.)
CORPORATION,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
Anne Stanley 1 appeals from the district court’s summary judgment in favor
of Abacus Technology Corporation, arguing the district court erred in assessing
her employment discrimination and retaliation claims. We affirm. 2
*
After examining the briefs and appellate record, this panel will honor the
parties’ request for a decision on the briefs without oral argument. See Fed. R.
App. P. 34(f); 10th Cir. R. 34.1(G). This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
At the time of her employment with Abacus, Stanley went by the name
Anne McCormick, which is reflected in the record evidence. See, e.g., Aplee.
Supp. App. at 92. Because she has filed this action as Anne Stanley, we will refer
to her by that name.
2
We note as an initial matter that Stanley filed a deficient appendix
(continued...)
Background
Stanley was hired by Barry Aguilar and Ken Moore as a photographer for
Abacus in December 2004. Abacus photographers provided general photography
services for Kirtland Air Force Base, including rotations in the studio Abacus
operated on Base, and on “alert duty,” to respond to urgent photography needs.
While she was at Abacus, Aguilar was Stanley’s supervisor and he was
responsible for scheduling her photography assignments. Stanley became
pregnant in 2005, and, in November, gave birth to a daughter. She returned to
work at the end of December 2005. In April 2006, Abacus terminated her
employment.
After her termination, Stanley filed a charge of employment discrimination
against Abacus with her local Equal Employment Opportunity Commission office
(EEOC). She received a “Notice of Right to Sue” letter from the EEOC and filed
2
(...continued)
containing only two items from the district court proceedings: a copy of the
district court docket sheet and her response to Abacus’ motion for summary
judgment with exhibits. See Aplt. App. Stanley failed to include a copy of her
complaint, a copy of Abacus’ motion for summary judgment, a copy of Abacus’
reply in support of its motion for summary judgment, and a copy of the district
court’s memorandum opinion, all of which are required under our rules. See 10th
Cir. R. 30.1(A)(1) (applying requirements for record on appeal from 10th Cir. R.
10.3 to appellant’s appendix). But Abacus has filed a supplemental appendix
containing all of the necessary items; accordingly, we will refer to the
supplemental appendix for all record citations. We caution Stanley’s attorneys
that the submission of a deficient appendix can result in the summary dismissal of
an appeal. See, e.g., Burnett v. SW. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir.
2009).
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a complaint in district court alleging Abacus unlawfully discriminated against her
on the basis of pregnancy and gender. She also alleged she was terminated in
retaliation for complaining about the alleged discrimination. The district court
entered summary judgment against her on all claims in the complaint. Stanley
now appeals from the dismissal of her action.
Standard of Review
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Okla. ex
rel. Dep’t of Mental Health, 165 F.3d 1321, 1326 (10th Cir. 1999). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact, and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “When applying this standard, we view the evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving
party.” Simms, 165 F.3d at 1326.
Discussion
Pregnancy Discrimination Claim
In 1978, Congress amended Title VII with the Pregnancy Discrimination
Act (PDA) thereby expanding the definition of what constituted discrimination
“on the basis of sex” to include discrimination “on the basis of pregnancy,
childbirth, or related medical conditions.” See 42 U.S.C. § 2000e(k). Stanley
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alleged three main areas of discrimination related to her pregnancy: (1) she was
given a lower performance appraisal due to her pregnancy; (2) she was not given
work modifications during her pregnancy; and, (3) after her daughter was born,
she was not afforded scheduling accommodations to breastfeed her daughter
during lunch. She also asserted she was terminated because of her pregnancy.
Here Stanley pursues only the arguments relating to her scheduling requests
after she gave birth and to her termination. See Aplt. Br. at 26-30. Because she
presented no direct evidence of discrimination, we must evaluate her claim using
the McDonnell Douglas burden-shifting framework. See Orr v. City of
Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). Stanley must first establish a
prima facie case of discrimination by showing (1) she is a member of a protected
class; (2) she suffered an adverse employment action; and (3) she was treated
differently from similarly situated employees. Id.
Assuming, arguendo, she has established the first element of the prima
facie case, Stanley has not established the second or third elements. Stanley
testified she never specifically requested an ongoing accommodation to breastfeed
her child during lunch. Aplee. Supp. App. at 56, 60. Instead, she would ask for
individual assignments to be rescheduled if there was a conflict with her lunch
hour. Id. She could not recall a single time when Aguilar refused her request to
reschedule a lunchtime assignment. Id. at 60. Because she never made a
permanent request for an accommodation and all of her temporary schedule
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requests were granted, the district court concluded she had suffered no actionable
discrimination.
Stanley asserts, however, that her scheduling requests did result in an
adverse employment action, evidenced by the fourth justification for her
termination. In her termination letter, Aguilar wrote:
You deliberately refused an assignment on 24 March 2006. I had
asked Eannette Oliver to call you to take a 15 minute accident
assignment on your way back from another assignment. You were
flippant and refused. I then had to take the assignment.
Id. at 92. But Stanley made no request for a scheduling accommodation that day
nor claimed a need to breastfeed her daughter at the time she refused the job
request. As she explained in her memo to Human Resources the day after her
termination, she “had just left the base after completing [a] job to pick up some
lunch and head back to work. Within 5 minutes of leaving this job, I received a
call from Mrs. Oliver requesting that I cover an Alert call that had just been
received. I told her, ‘No way, I’m on lunch.’” Id. at 93. Although Stanley
claims she normally feeds her daughter during lunch and was therefore frustrated
to receive two assignments during lunch, she never indicates she made a request
that day to receive an accommodation during her lunch hour. Id. In addition,
Aguilar’s concern, as expressed in the termination letter, was her “flippant”
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attitude in refusing the job assignment. Id. at 92. Stanley has shown no adverse
employment action due to her scheduling requests. 3
Moreover, she has provided no evidence of similarly situated employees
who were treated differently. She asserts she “sought to have Defendant’s
personnel policy that permitted employees to have duty free lunch hours and a
liberal policy about leaving work for personal reasons uniformly applied to her.”
Aplt. Br. at 27. But she cites no evidence showing Abacus had such a policy, nor
does she identify a single co-worker who received a “duty free lunch” or was
treated differently from her in any way. 4 Id. at 27-28. In fact, her deposition
testimony contradicts this argument. In it she said she did not “see it necessary to
make me permanently off duty during [the noon to 1:00] time period,” in part
3
After initially concluding Stanley failed to show any actionable
discrimination regarding her ability to breastfeed her daughter during lunch, the
district court went on to note that, in any event, courts have uniformly held
breastfeeding does not fall within the scope of the “related medical conditions”
language in the PDA. See Aplee. Supp. App. at 188 (citing cases). This question
has not been addressed by our court and we need not reach it here because
Stanley’s claim can be resolved on other grounds.
4
Stanley does include a citation to the affidavit of Shalla Halverson, a
former security manager at Abacus, in which Halverson testified “male employees
would . . . be gone for several days at a time . . . and nothing would happen to
them.” Aplee. Supp. App. at 27 (quotation omitted). But this statement is
insufficient to show Stanley was treated differently from similarly situated
employees because it is unsupported, vague and conclusory. See Jarvis v. Potter,
500 F.3d 1113, 1120 (10th Cir. 2007) (“The purpose of a summary judgment
motion . . . is to determine whether there is evidence to support a party’s factual
claim. Unsupported conclusory allegations thus do not create a genuine issue of
fact.” (quotation omitted)).
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because she did not want to formally ask to be given “special treatment over
everybody else.” Aplee. Supp. App. at 60 (emphasis added).
Finally, Stanley has not demonstrated she was terminated because of her
pregnancy. But, she asserts “Abacus did not have legitimate non-discriminatory
reasons for terminating [her],” and she “has offered an abundance of eviden[ce]
that Abacus’s proffered reasons for terminating her are untrustworthy.” Aplt. Br.
at 29-30. First, she offers no record support for these conclusory statements. See
id. Second, her argument assumes she established a prima facie case of
discrimination (shifting the burden to Abacus to provide legitimate non-
discriminatory reasons for her termination, which she could rebut by showing the
stated reasons were pretextual). See Orr, 417 F.3d at 1149. But she failed to
establish a prima facie case of pregnancy discrimination; accordingly there is no
basis to shift the burden to Abacus on this issue and no basis to further evaluate
her assertion she was terminated because of her pregnancy. Id. Abacus was
entitled to summary judgment on the pregnancy discrimination claim.
Retaliation Claim
Stanley alleged she complained about being subjected to pregnancy and sex
discrimination to a Human Resources Manager at Abacus on February 1, 2006 and
March 27, 2006. She was terminated by Abacus on April 6, 2006, allegedly in
retaliation for her complaints about discrimination. The district court concluded
she had established a prima facie case of retaliation, which led it to consider
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whether Abacus had presented a legitimate and non-discriminatory reason for her
termination.
The district court began by reviewing the termination letter Abacus gave to
Stanley. That letter states she was being terminated because of (1) her “marginal”
rating on staff relations on her January 2006 performance evaluation and her
“continued poor staff relations;” (2) her breach of “confidentiality involving other
staff members’ confidential matters;” (3) “hav[ing] been verbally counseled for
other violations of policy;” (4) deliberately refusing an assignment in a “flippant”
manner; and (5) deliberately violating policy by not alerting anyone she was
leaving early on April 5, and responding to Aguilar’s inquiry about her absence in
an “offensive and insubordinate” manner. Aplee. Supp. App. at 92.
According to the district court, this letter provided legitimate
non-discriminatory reasons for Stanley’s termination. The court next considered
whether Stanley had provided evidence raising an inference that Abacus’ reasons
for her termination were pretextual; it reviewed affidavits she supplied from two
other former Abacus employees, Shalla Halverson and Monique Sanders. In her
affidavit, Sanders asserted, “[i]n [her] opinion, discrimination at Abacus is part of
the culture of the office.” Id. at 116. Sanders further said she was subjected to
sexual harassment when she worked at Abacus and it was “common knowledge”
that Stanley was fired after she complained of sexism. Id. at 116-17. But, as the
district court noted, “Ms. Sanders left Abacus in September 2002—over two years
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before Ms. Stanley began working there. She thus has no personal knowledge of
the circumstances surrounding Ms. Stanley’s termination.” Id. at 191. Moreover,
as the district court explained,
[p]erhaps most important, Ms. Sanders’ testimony that ‘it is common
knowledge that [Stanley] was fired after she complained about being
discriminated against’ does not raise a genuine dispute of a material
fact. [Aplee. Supp. App. at 117]. Indeed, Abacus stipulates that
Ms. Stanley was discharged after she complained, yet it denies that
she was discharged because she complained.
Id. (emphasis added).
The district court then considered the affidavit of Halverson, particularly
her “bald assertion in her affidavit that Ms. Stanley was terminated because she
made a formal complaint.” Id. (quotation omitted). It correctly explained, “this
statement is pure speculation” because Halverson “acknowledges that she did not
get involved in the decision-making process on terminations.” Id. Finally, the
court considered Halverson’s assertion that “male employees would . . . be gone
for . . . days and nothing would happen to them.” Id. at 192. But it concluded the
statement was “insufficient because it is clearly not based on personal knowledge
nor specific enough to raise an inference of pretext insofar as discrimination
against Stanley is concerned.” Id. The court ultimately determined the affidavits
submitted by Stanley did “not reveal enough admissible evidence to support [her]
claims” and did not “raise an inference of pretext.” Id.
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Stanley now argues the district court erred in granting summary judgment
in favor of Abacus on her retaliation claim, but she points to no additional
evidence (contained in her summary judgment response) the district court failed
to consider. And she does not explain how the court erred in its analysis of her
retaliation claim other than to generally assert, “[genuine] issues of material fact
exist as to whether [Abacus] provided convincing evidence of non-retaliatory
rationales for Stanley’s discharge and as to whether she proffered enough
evidence to raise an inference of pretext.” Aplt. Br. at 34-35. The district court
properly granted summary judgment; Abacus presented legitimate
non-discriminatory reasons for terminating Stanley and she failed to offer
sufficient evidence to raise an inference of pretext.
Gender Discrimination Claim
Stanley also alleged Abacus “followed a policy and practice of
discrimination against [her] because of her sex in violation of Title VII.” Aplee.
Supp. App. at 8. She claimed she and other similarly situated female employees
were scrutinized more closely and given lower marks on performance appraisals.
She asserted her termination was a result of a policy to promote male employees
to higher level management positions to the disadvantage of female employees.
Finally, she reiterated the allegation made in her pregnancy discrimination
claim—that her scheduling requests were not given the same accommodations as
similarly situated male employees.
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On appeal, Stanley asserts “the district court erred by analyzing her
pregnancy and gender discrimination claims as a single related claim as opposed
to two separate and distinct causes of action.” Aplt. Br. at 30. But in response to
Abacus’ motion for summary judgment she offered no evidence to support her
gender discrimination claim other than the affidavits of Halverson and Sanders.
Although she made conclusory assertions she was treated differently from male
co-workers, she provided no evidence to support those assertions. See Aplee.
Supp. App. at 113. Stanley now contends Halverson’s affidavit offers direct
evidence Abacus discriminated against her based on conditions related to her
pregnancy and gender. Alternatively, she argues she established a prima facie
case of gender discrimination, but she relies on the same conclusory assertions
she made in response to the summary judgment motion. Compare Aplee. Supp.
App. at 113 with Aplt. Br. at 32.
Although the district court’s order does not address Stanley’s gender
discrimination claim separately from her pregnancy discrimination claim, there
was no reversible error. The district court addressed the deficiencies with
Halverson’s and Sanders’ affidavits, which is the only evidence submitted by
Stanley in support of her gender discrimination claim. See Aplee. Supp. App. at
191-92 and 112-13. And, as with her pregnancy discrimination claim, Stanley
cannot establish a prima facie case of discrimination because she presented no
evidence of differential treatment with respect to similarly situated employees.
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See id. at 113; Aplt. Br. at 32. Her unsupported conclusory assertions do not
create a genuine issue of material fact. See Jarvis, 500 F.3d at 1120. The
summary judgment was proper.
Conclusion
The judgment of the district court is AFFIRMED. Abacus initially filed a
motion to dismiss this appeal, arguing Stanley’s brief was deficient and untimely.
Abacus’ motion to dismiss is DENIED as moot.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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