Livingston v. Sodexo, Inc. ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
ANNIE LUCILE LIVINGSTON,
Plaintiff – Appellant,
v. No. 13-3170
(Case No. 5:11-CV-04162-EFM)
SODEXO, INC., and Affiliated Co., (D. Kan.)
Defendant – Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the 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).
This case is therefore ordered submitted without oral argument.
Plaintiff Annie Lucile Livingston, proceeding pro se, appeals the district
court’s dismissal of her claims against Defendant SDH Services West, LLC. 1
*
This order is not binding precedent, except under the doctrines of law of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
Defendant states that Plaintiff has “incorrectly identified ‘Sodexo, Inc.’”
as the employer in her initial complaint and in the present appeal. (Appellee’s Br.
at 1.) Nevertheless, Defendant responded to the complaint and submits to this
Plaintiff was employed by Defendant from 2004 to August 31, 2010, when
Defendant terminated Plaintiff’s employment. Defendant cited a number of
performance-related employment deficiencies as its reason for terminating
Plaintiff’s employment. After her termination, Plaintiff filed a charge of
discrimination against Defendant with the Kansas Human Rights Commission and
subsequently filed her complaint in federal district court. She ultimately alleged
that Defendant discriminated against her on the basis of her race and gender by
failing to promote her. Plaintiff further alleged her termination was the result of
discrimination based on her race, age, and gender. Finally, Plaintiff alleged that
her termination was retaliation for complaints she made regarding certain race-
based comments. Additionally, in her response brief to Defendant’s motion for
summary judgment, Plaintiff alleged for the first time that her managers harassed
her at work and at home.
The district court dismissed all of Plaintiff’s claims on Defendant’s motion
for summary judgment. The district court concluded Plaintiff had failed to
establish a prima facie case to support her discrimination and retaliation claims
under the McDonnell Douglas analysis. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The district court further concluded that even if Plaintiff
appeal. Defendant offers a possible explanation for Plaintiff’s confusion
regarding the name of the proper entity in its Corporate Disclosure Statement.
(Id.)
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had established a prima facie case to support these claims, she was unable to raise
a genuine issue of material fact as to whether the legitimate, non-retaliatory, and
non-discriminatory reasons articulated by the Defendant for its decision not to
promote Plaintiff and to terminate her employment were pretextual. The district
court also dismissed Plaintiff’s tardy harassment claims, concluding it lacked
subject matter jurisdiction over the claims because they were not included in
Plaintiff’s discrimination charge with the Kansas Human Rights Commission. See
McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1101 (10th
Cir. 2011). The district court also found Plaintiff’s harassment claims could not
be considered because they were not included in the final pretrial order. Hullman
v. Bd. of Trustees of Pratt Cmty. Coll., 950 F.2d 665, 667 (10th Cir. 1991) (“A
plaintiff cannot escape the binding effect of the pretrial order by raising new
issues in a response to the defendant’s motion for summary judgment.”(quotation
marks omitted)).
Having carefully reviewed the briefs and the record on appeal, we find no
error in the district court’s conclusions. To the extent Plaintiff seeks to appeal
the district court’s denial of her motion for reconsideration, we find no error in
the district court’s order denying that motion. 2 Accordingly, we AFFIRM the
district court’s dismissal of the case for substantially the reasons set forth in the
2
Plaintiff also appears to allege in her appeal that Defendant abused the
litigation process. However, this allegation is not supported by the material
included in the record on appeal.
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district court’s thorough twenty-two-page opinion granting summary judgment to
Defendant.
Entered for the Court
Monroe G. McKay
Circuit Judge
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