Green v. Runyon

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 5, 1997
• Docket: 97-6074
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 5 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

VICKI S. GREEN,

Plaintiff-Appellant,

v. No. 97-6074 (D.C. No. 95-CV-1429) MARVIN T. RUNYON, United States (W.D. Okla.) Postmaster General,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Plaintiff Vicki S. Green appeals from the district court order granting

summary judgment in favor of defendant on her claims brought pursuant to

Title VII, 42 U.S.C. §§ 2000e through 2000e-17. Because the parties are familiar

with the facts, they will not be repeated here. In granting summary judgment, the

district court found that, with respect to her sexual harassment claim, (1) plaintiff

failed “to establish that the alleged harassment was sufficiently severe or

pervasive to alter the conditions of her employment and create an abusive work

environment,” Appellant’s App. at 429, and (2) plaintiff presented “no evidence

that defendant failed to take sufficient disciplinary and remedial action in

response to her complaint,” id. With respect to plaintiff’s retaliation claim, the

court found that (1) as a matter of law, a threatened letter of warning was not an

adverse employment action, see id. at 430, and (2) plaintiff failed to demonstrate

that defendant’s reason behind the change in her job responsibilities was a mere

pretext for discrimination. 1

We review the grant of summary judgment de novo, applying the same

standard as the district court. See Notari v. Denver Water Dep’t, 971 F.2d 585,

1 In considering defendant’s motion for summary judgment, the district court found compelling defendant’s argument that the only issues properly exhausted were the limited ones included in plaintiff’s EEO complaints rather than the broader ones raised in her amended complaint. The court found, however, that even “to the extent plaintiff’s claims may be said to reasonably relate to other allegedly unlawful conduct,” plaintiff’s evidence was insufficient to establish her claims of discrimination and retaliation. See Appellant’s App. at 427.

-2- 587 (10th Cir. 1992). Summary judgment is appropriate where there are no

genuinely disputed material facts and the moving party is entitled to a judgment

as a matter of law. See United States v. Sackett, 114 F.3d 1050, 1051 (10th Cir.

1997). Having carefully reviewed the record in the light most favorable to

plaintiff, see id., we affirm for substantially the reasons given by the district

court.

Plaintiff also maintains that the district court erred in denying her “Motion

to Reconsider and Vacate Summary Judgment to Allow Plaintiff Additional

Time to Submit Evidence.” We review the denial of plaintiff’s motion for

post-judgment relief under Fed. R. Civ. P. 59 and 60 for abuse of discretion.

See Buchanan v. Sherrill, 51 F.3d 227, 230 (10th Cir. 1995). Plaintiff argues that

certain evidence was unavailable until after summary judgment was granted,

but submits supporting affidavits which include only conclusory statements

concerning counsel’s due diligence and the fear of retaliation which purportedly

prevented co-employees from coming forward before judgment but not after.

On this record, we cannot conclude that the district court abused its discretion in

denying plaintiff’s post-judgment motion.

-3- The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge

-4-