Housley v. Boeing Company

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 6 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

OLIVIA J. HOUSLEY,

Plaintiff - Appellant,
No. 02-3007
v. D.C. No. 00-CV-2429-JWL
(D. Kansas)
THE BOEING COMPANY,

Defendant - Appellee.

ORDER AND JUDGMENT *

Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , ** Senior District
Judge.

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This order and judgment is not binding precedent, except under the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. 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.
**
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
 Plaintiff-appellant Olivia J. Housley appeals from the district court’s order

granting summary judgment on her employment discrimination claim in favor of

defendant-appellee The Boeing Company. Housley’s complaint alleges that by

failing to promote her to certain management positions, Boeing discriminated

against her (1) on the basis of sex, in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e to 2000e-17 and (2) on the basis of age, in violation

of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). 1

As amended, her complaint also alleges that Boeing retaliated against her for

bringing this action.

In its carefully-considered order of summary judgment, the district court

addressed the evidence presented in the light most favorable to Housley. The

district court concluded that even if she had presented a prima facie case of

discrimination, she had failed to offer any evidence to rebut Boeing’s assertions

of legitimate, nondiscriminatory reasons for its decisions to promote others rather

than Housley. The district court further concluded that summary judgment should

be granted on Housley’s retaliation claim because she had failed to establish a

prima facie case of retaliation.

1
Housley’s complaint also contained claims under the Kansas Age
Discrimination in Employment Act, Kan. Stat. Ann. §§ 44-1111 to 44-1121, and
the Kansas Act Against Discrimination, Kan. Stat. Ann. §§ 44-1001 to 44-1044.
The district court dismissed these claims, noting that Housley conceded failure to
exhaust her administrative remedies with respect to them.

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 In her pro se appeal brief, Housley raises a total of six issues. Three of her

issues challenge alleged factual misrepresentations made by defendant’s counsel

to the district court. We reject these challenges out of hand, for two reasons.

First, Housley does not demonstrate how the alleged misstatements of fact led to

district court error. Such a showing is crucial, because this court reviews for

error in the district court’s order, not in the parties’ briefs. Second, Housley

admitted the truth of each of the challenged facts, for summary judgment

purposes, in her response to Boeing’s statement of uncontroverted facts. See D.

Kan. R. 56.1(a). She has therefore waived any appellate challenge to the admitted

facts. See, e.g., Tobey v. EXTEL/JWP, Inc. , 985 F.2d 330, 333 (7th Cir. 1993).

Housley’s remaining three issues raise specific objections to the district

court’s summary judgment order. Concerning her age and sex discrimination

claims, she contends that the district court failed to consider her claims in the

proper context of Boeing’s “Phase I” and “Phase II” hiring procedures.

Concerning her retaliation claim, she contends (1) that Boeing management

personnel who allegedly retaliated against her had specific knowledge that she

had filed this action; and (2) that she identified specific positions that she

requested but did not receive after she filed this action.

Our standard of review calls for us to review the district court’s summary

judgment disposition de novo:

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 We review the district court’s grant of summary judgment de
novo. Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that 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. When applying this standard, we view
the evidence and draw reasonable inferences in the light most
favorable to the non-moving party.

Tax & Acct’g Software Corp. v. United States , 301 F.3d 1254, 1257 (10th Cir.

2002) (citations & quotations omitted). Having carefully reviewed each of the

errors Housley raises and the district court’s summary judgment disposition in

light of the above-referenced standards, we conclude that she has failed to

demonstrate reversible error and that the district court properly entered summary

judgment in favor of Boeing. We therefore AFFIRM the judgment of the United

States District Court for the District of Kansas for substantially the same reasons

stated in the district court’s memorandum and order of December 3, 2001.

Entered for the Court

John C. Porfilio
Circuit Judge

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