FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
VALERIE ANNE SCHLECHT,
Plaintiff - Appellant,
v. No. 14-1513
(D.C. No. 1:11-CV-03072-RM-BNB)
LOCKHEED MARTIN CORPORATION, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges.
_________________________________
Valerie Anne Schlecht, appearing pro se, appeals the district court’s grant of
summary judgment in favor of her employer, defendant Lockheed Martin
Corporation (LMC), on her disability discrimination claims. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
The facts are thoroughly and accurately set forth in the magistrate judge’s
report and recommendation (R&R) and the district court’s order adopting the R&R
and granting summary judgment; therefore, we recite only the most salient facts.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I.
Schlecht was employed with LMC as an optical engineer. In 2007, she was
assigned to work on LMC’s Orion space shuttle project. Her wages were garnished
in July 2008 and again in June 2009. In July 2009, she asked LMC to notify her
immediately if it was served with another wage garnishment because she suffered
from attention deficit disorder (ADD). In September 2009, she asked LMC to notify
her within two days of receiving a garnishment order and to give her an accounting
and explanation of the order before adjusting her paycheck. Schlecht’s wages were
not garnished again, however.
In 2009, the Orion project was delayed, so LMC assigned Schlecht to different
tasks. This work was not profitable for LMC or related to her optical engineering
skills. In August 2009, LMC’s president told its employees that it expected to
eliminate approximately 800 positions because of federal budget cuts. Schlecht was
told she would be included in this reduction-of-force. The funding for the Orion
project was cut in 2010, and LMC laid off approximately 490 employees in 2009 and
2010. LMC laid off Schlecht in June 2010.
Schlecht then filed a pro se complaint alleging LMC violated her rights under
the Americans with Disabilities Act (ADA). She alleges she suffers from ADD,
major anxiety disorder, and post-traumatic stress disorder (PTSD), which cause her to
have an irrational, paralyzing fear that she would be harmed by LMC payroll
processes. She alleged that LMC failed to accommodate these disabilities, subjected
her to a hostile work environment because of these disabilities, and terminated her
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both because of her disabilities and in retaliation for her attempt to obtain an ADA
accommodation. LMC moved for summary judgment.
Because Schlecht did not have any direct evidence of disability discrimination,
she was required to establish first a prima facie case of discrimination by showing
that she “(1) is a disabled person as defined by the ADA; (2) is qualified, with or
without reasonable accommodation, to perform the essential functions of the job . . . ;
and (3) suffered discrimination by an employer . . . because of that disability.”
EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011) (internal
quotation marks omitted). To satisfy the third prong, “a plaintiff generally must
show that [s]he has suffered an adverse employment action because of the disability.”
Id. at 1038 (internal quotation marks omitted).
Here, the district court assumed for the sake of argument that Schlecht was
disabled as defined by the ADA, and it is undisputed that she suffered an adverse
employment action. Although Schlecht alleged LMC failed to make several
requested disability accommodations, the district court ruled that she only produced
evidence relating to her garnishment accommodation requests. The district court
ruled these accommodation requests were moot, however, because LMC never
received another garnishment order after that accommodation request. Thus, it
dismissed her ADA accommodation claim. It also dismissed her ADA hostile work
environment claim because Schlecht did not produce any evidence of a hostile work
environment.
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As to Schlecht’s termination and retaliation claims, the district court ruled that
LMC presented evidence it selected Schlecht for inclusion in its company-wide
reduction in force for legitimate, nondiscriminatory reasons, namely, that her work
on the Orion project ended due to budget cuts, and her skill set was too narrow to
assign her to profitable work at LMC. Because LMC presented evidence of a
legitimate, nondiscriminatory reason for its action, “the burden then shifted back to
[Schlecht] to show that [LMC’s] proffered reason was mere pretext.” Id. at 1052.
The district court ruled that Schlecht did not carry her burden to present evidence
suggesting LMC’s proffered reasons for terminating her were pretext for ADA
discrimination or retaliation. Accordingly, the district court granted summary
judgment in favor of LMC on all of Schlecht’s claims.
Schlecht filed a motion to alter or amend the judgment under Fed. R. Civ. P.
59(e), requesting a hearing and attaching new evidence. The district court denied the
motion because Schlecht failed to demonstrate an intervening change in the
controlling law, any new evidence previously unavailable, or the need to correct clear
error or prevent manifest injustice. See Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000) (detailing grounds warranting reconsideration under
Rule 59(e)). Schlecht appeals.
II.
“We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284
(10th Cir. 2011). Summary judgment is appropriate “if the movant shows that there
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is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). We view the summary judgment evidence
“in the light most favorable to the non-moving party.” Helm, 656 F.3d at 1284. We
review for abuse of discretion the district court’s discovery and sanction rulings, Lee
v. Max Int’l, LLC, 638 F.3d 1318, 1320 (10th Cir. 2011), refusal to hold a hearing,
Davoll v. Webb, 194 F.3d 1116, 1142-43 (10th Cir. 1999), and denial of a Rule 59(e)
motion, Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10th Cir.
2005). Although we construe Schlecht’s pro se brief liberally, “our role is not to act
as [her] advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
Schlecht argues on appeal that the district court erred by (a) not sua sponte
imposing sanctions on LMC for requesting overly-broad discovery of her medical
records; (b) not informing her prior to filing her Rule 59(e) motion she was required
to authenticate her summary judgment evidence; (c) not considering the evidence she
presented in her Rule 59(e) motion in light of her pro se status and disabilities;
(d) not holding a hearing on her Rule 59(e) motion; (e) ruling she failed to make any
reasonable ADA accommodation request other than her garnishment request; and
(f) improperly resolving disputed issues of fact when it (i) characterized her
accommodation request as seeking advance notice of a garnishment order, rather than
a “present assurance” that it would give her advance notice, Aplt. Opening Br. at 14,
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and (ii) did not let her present testimonial evidence of a hostile work environment at
a summary judgment hearing.1
We note at the outset that Schlecht’s pro se status does not excuse her from
following the strict requirements of Rule 56 in order to properly contest a summary
judgment motion. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010)
(discussing a pro se litigant’s duty to comply with Rule 56 of the Federal Rules of
Civil Procedure); Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (stating
that a party’s “pro se status does not excuse the obligation of any litigant to comply
with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure.”). Thus, there is no merit to Schlecht’s claims (b), (c), and (f) that the
district court erred in requiring her to comply with the same evidentiary and
procedural rules applicable to all litigants. To oppose summary judgment, Schlecht
was required to do more than provide her conclusory assertions or subjective
interpretation of the evidence; she was required to present admissible evidence of
material fact. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th Cir. 1995)
(stating that “[s]ufficient evidence (pertinent to the material issue) must be identified
by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated
1
Schlecht also lists a claim (g) in which she asks this court to “consider her
arguments in support of her need for an accommodation to enjoy equal benefits and
privileges as other similarly situated employees, even though the district court did
not.” Aplt. Opening Br. at 19. Her quite brief arguments on this issue are too vague
and general to present an authentic appellate issue. Furthermore, we will not address
the many new arguments that Schlecht first raised in her Reply brief. See Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordinarily review
issues raised for the first time in a reply brief.”).
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therein”) (internal quotation marks omitted). “[C]onclusory allegations standing
alone will not defeat a properly supported motion for summary judgment.” White v.
York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995).
Turning to Schlecht’s challenge to the substance of the district court’s
summary judgment ruling, her claims (e) and (f), we conclude the record supports the
district court’s findings that the only evidence Schlecht produced of an
accommodation request she made that would trigger ADA liability were her
garnishment requests. Because it is undisputed that LMC did not receive any
garnishment orders after her requests, the district court correctly ruled that Schlecht
offered no evidence that LMC denied her any reasonable accommodations to which
she was entitled, precluding her failure-to-accommodate claim under the ADA. See
Kotwica v. Rose Packing Co., 637 F.3d 744, 747-48 (7th Cir. 2011) (explaining that a
plaintiff alleging a failure-to-accommodate claim must establish, among other
elements, that the defendant failed to make reasonable modifications to accommodate
the plaintiff’s disabilities). Schlecht makes conclusory assertions that she tried to
communicate with LMC but she produced no supporting evidence that she
communicated to LMC any adequate request to accommodate a disability other than
her garnishment request. See C.R. England, 644 F.3d at 1049 (“The request for
accommodation must be sufficiently direct and specific, giving notice that [the
employee] needs a special accommodation.” (internal quotation marks omitted)).
The record further supports the district court’s finding that Schlecht did not
present any evidence of a hostile work environment. For a hostile environment claim
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to survive summary judgment, Schlecht was required to present evidence from which
a rational jury could find that her workplace was permeated with discriminatory
intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the
terms, conditions, or privileges of employment, and the harassment stemmed from
disability-related animus. See MacKenzie v. City & Cty. of Denver, 414 F.3d 1266,
1280 (10th Cir. 2005). Schlecht did not present any such evidence. She argues she
could have presented such evidence if the district court had held a hearing, but it is
her obligation to present documentary evidence in response to the motion for
summary judgment. See Gross, 53 F.3d at 1546. Schlecht does not challenge the
district court’s rulings that she failed to present any evidence of pretext in connection
with her discriminatory discharge and retaliation claims. We agree with the district
court that there were no genuine issues of material fact allowing any of Schlecht’s
ADA claims to survive summary judgment.
We also conclude that the district court did not abuse its discretion by not
sua sponte imposing sanctions for LMC’s medical-records discovery request (claim
(a)). Nor did the district court abuse its discretion in declining to hold a hearing on
either LMC’s motion for summary judgment or Schlecht’s Rule 59(e) motion (claims
(d) and (f)). A district court is not required to hold a hearing or allow oral argument
on a summary judgment or Rule 59(e) motion, Nolan v. de Baca, 603 F.2d 810, 812
(10th Cir. 1979), and refusing to conduct an unnecessary hearing is not an abuse of
discretion.
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As to Schlecht’s Rule 59(e) claims, we note that the district court did not deny
her Rule 59(e) motion solely because her newly-submitted evidence was not
authenticated or did not comply with the requirements of Rule 56, but more broadly
because Schlecht did not demonstrate any of the grounds warranting Rule 59(e)
relief. The district court properly refused to consider additional evidence in support
of Schlecht’s Rule 59(e) motion where there was no showing “that the evidence was
newly discovered or unavailable in a more timely fashion through the exercise of
diligence.” Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir.
1992). Accordingly, the district court did not abuse its discretion in denying
Schlecht’s Rule 59(e) motion (claims (b) and (c)).
The district court’s judgment is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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