Chytka v. Wright Tree Service, Inc. , 617 F. App'x 841 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2015
Elisabeth A. Shumaker
Clerk of Court
KATHLEEN CHYTKA,
Plaintiff - Appellant,
v. No. 14-1368
(D.C. No. 1:11-CV-00968-REB-KMT)
WRIGHT TREE SERVICE, INC., (D. Colo.)
Defendant - Appellee.
ORDER AND JUDGMENT*
Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.
Kathleen Chytka, a female over the age of 40 proceeding pro se, appeals the
district court’s entry of judgment in favor of her former employer, Wright Tree
Service, Inc. (WTS), on her claims of age and gender discrimination and hostile work
environment in violation of Title VII of the Civil Rights Act of 1964 (Title VII) and
the Age Discrimination in Employment Act (ADEA). She also asserted violations of
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the Equal Pay Act (EPA), the Fair Labor Standards Act (FLSA), and the Employee
Retirement Income Security Act (ERISA). In addition, she asserted state-law claims
of promissory estoppel and unjust enrichment, and violations of various
constitutional rights. We affirm.
I. Background
WTC employed Chytka as a Job Planner from September 1999 until July 6,
2009, when it terminated her employment. Chytka’s job duties included making
arrangements with homeowners and businesses for WTS to clear trees and vegetation
from utility and mechanical lines, among other services. Xcel Energy (Xcel), a major
customer of WTS, provided electricity and natural gas to over 150 communities in
Colorado. Chytka worked closely with Xcel supervisors in arranging to provide
WTS services for Xcel and its customers.
In 2007, Xcel supervisor Adam Pena became WTS’s contact. Chytka’s job
required her to work with Pena. In April 2009, Pena complained to WTS about
Chytka’s failure to notify homeowners that WTS would be trimming vegetation on
their property at Xcel’s request. On June 9, June 30, and July 3, 2009, Pena lodged
additional complaints about Chytka’s job performance. In view of the complaints
from its largest customer, WTS decided to discharge Chytka.
As part of their compensation, WTS employees were eligible to participate in a
company stock ownership plan (Plan), governed by ERISA. The Plan provided that
Chytka could obtain her vested account balance five years after leaving her
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employment with WTS. Chytka alleged she and WTS entered into an employment
agreement whereby WTS promised not to discriminate or retaliate against her on the
basis of gender or age.
After receiving a right-to-sue letter from the EEOC, Chytka filed this action.
Following discovery, WTS moved for summary judgment. A magistrate judge
recommended granting summary judgment on all but one of Chytka’s claims and the
district court adopted that recommendation. The remaining claim—gender
discrimination based on WTS’s failure to train Chytka to climb, trim, and remove
trees—proceeded to jury trial. After Chytka presented her evidence, WTS moved for
judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil
Procedure. The district court granted the motion and entered judgment in favor of
WTS. Chytka appeals all rulings of the district court. In addition, she seeks relief
based on a right to counsel, several constitutional amendments, and judicial bias.
II. Summary Judgment
We first consider Chytka’s challenges to the summary judgment entered on all
but one of her claims. “A grant of summary judgment must be affirmed if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” James v. Wadas, 724 F.3d 1312, 1315
(10th Cir. 2013) (internal quotation marks omitted). Although “[w]e consider the
evidence in the light most favorable to the non-moving party, . . . unsupported
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conclusory allegations do not create a genuine issue of fact.” Id. (internal quotation
marks omitted).
We analyze Chytka’s discrimination claims under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
framework, it is Chytka’s initial burden to establish a prima facie case of
discrimination. Once she does so, the burden shifts to WTS to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Lobato v. N.M. Envtl.
Dep’t, 733 F.3d 1283, 1288 (10th Cir. 2013). If WTS makes the required showing,
the burden returns to Chytka to show a genuine dispute about whether the proffered
explanation was pretext for discrimination. Id. at 1289.
We liberally construe Chytka’s pro se filings. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam); Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005). But we don’t assume responsibility to serve as the
litigant’s counsel by constructing arguments or searching the record. Garrett, 425
F.3d at 840. And we repeatedly reiterate that pro se parties must follow the same
rules of procedure governing other litigants. Id.The district court first dismissed Chytka’s age and gender discrimination
claims based on WTS’s failure to promote her to the position of Operations Manager,
concluding she failed to exhaust administrative remedies on those claims. The court
granted summary judgment on Chytka’s claim that WTS discriminated against her on
the bases of gender and age by failing to promote her to the position of General
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Foreman and by discharging her. The court concluded she failed to present a prima
facie case on the promotion claim because it was undisputed she lacked the
qualifications for that position. Regarding her discharge claim, the court rejected
Chytka’s conclusory claim that she received different treatment than male employees
and concluded she failed to present a genuine issue of fact as to pretext. The district
court also granted summary judgment on Chytka’s hostile work environment claim,
finding the evidence insufficient to create a triable issue of fact as to the existence of
a hostile work environment due to gender or age.
Further, the district court granted WTS summary judgment on Chytka’s EPA
and FLSA claims, finding she presented insufficient evidence to resist summary
judgment on those claims. Next, noting Chytka’s failure to provide evidence she
exhausted her administrative remedies on her ERISA claim, the court granted
summary judgment against her on that claim. Finally, the court granted WTS
summary judgment on Chytka’s state-law claims, holding federal law preempted her
unjust-enrichment claim, and the alleged agreement not to discriminate was not
enforceable under a promissory-estoppel theory.
On appeal, Chytka fails to assert any argument as to how the district court
erred, either in finding no disputed issues of material fact or in applying the law.
Rather, her rambling and repetitive briefs assert general claims of unfairness
and discrimination. Although we construe her pro se filings liberally, the failure
to “advanc[e] [any] reasoned argument as to the grounds for the appeal,” is
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insufficient appellate argument. Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8
(10th Cir. 1992); accord Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 n.6
(10th Cir. 2008) (finding appellant’s suggestion that the trial court erred to be
insufficient appellate argument absent any reasoned argument as to the grounds for
the appeal); United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The
court will not consider such issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation.” (internal quotation
marks omitted)). Accordingly, we affirm the district court’s grant of summary
judgment to WTS on all but one of Chytka’s claims.
III. Jury Trial on Failure-to-Train Claim
At the close of Chytka’s evidence, the district court granted WTS’s motion for
judgment as a matter of law under Rule 50(a) on Chytka’s claim that WTS
discriminated against her based on her gender by failing to train her to climb, trim,
and remove trees. Chytka contends the district court erred because she proved she
would have had to take a pay cut to receive the desired training, the district court
would not allow her to present her witnesses and exhibits and unfairly restricted her
cross-examination of WTS’s witnesses, she did not receive copies of WTS’s exhibits
until shortly before trial, and her evidence was sufficient to resist the Rule 50(a)
motion.
Chytka’s failure to provide this court with a trial transcript precludes review of
her challenge to the judgment as a matter of law. “If the appellant intends to urge on
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appeal that a finding or conclusion is unsupported by the evidence or is contrary to
the evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2); see also
Fed. R. App. P. 11(b) (indicating that appellant must order necessary transcripts);
10th Cir. R. 10.1(A)(1) (stating appellant has the duty to provide all necessary
transcripts related to the issues on appeal). Although Chytka asserts in her reply
brief that the court clerk informed her the court would obtain the transcript, the rules
specify the appellant must arrange for necessary transcripts. Fed. R. App. P.
10(b)(2); cf. 10th Cir. R. 11.2(A) (stating that in pro se appeal district court will
forward the record to the circuit clerk). Her pro se status does not exempt her from
following the rules or from providing an adequate transcript. See Murray v. City of
Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); 10th Cir. R. 11.2(A) (stating
that in pro se cases, district court sends only the transcripts that have been filed for
appeal). The absence of a “transcript leaves us with no alternative but to affirm.”
Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1238 (10th Cir.
1999) (internal quotation marks omitted).
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IV. Remaining Arguments
Chytka repeatedly asserts in conclusory fashion that she was not allowed
discovery but she fails to identify any objectionable discovery orders, explain why
any orders were improper or how she was prejudiced by any discovery order. Again,
it’s not this court’s role to sift through the record searching for evidence supporting
Chytka’s claims, and we deny relief on this argument. See Roska ex rel. Roska v.
Peterson, 328 F.3d 1230, 1246 n.13 (10th Cir. 2003) (declining to search record for
support for plaintiffs’ contention).
We also reject Chytka’s assertion that she was entitled to attorney
representation throughout the trial. A civil litigant such as Chytka does not have a
Sixth Amendment right to counsel. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164,
1169 (10th Cir. 2003). Similarly, Chytka has not shown a violation of any other
constitutional right.
To the extent Chytka pursues claims for breach of contract, disparate impact,
and quid-pro-quo harassment, she fails to indicate whether she presented these claims
in the district court, and our review of her amended complaint indicates she failed to
do so. Therefore, we do not consider these claims raised for the first time on appeal.
See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002)
(“[A]bsent extraordinary circumstances, we will not consider arguments raised for
the first time on appeal.”).
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Chytka’s claims of judicial bias also fail since her complaints about the
magistrate judge and the district court are limited to adverse rulings. Bixler v.
Foster, 596 F.3d 751, 762 (10th Cir. 2010) (“Adverse rulings alone do not
demonstrate judicial bias.”).
V. Chytka’s Motion to Supplement the Record on Appeal
Finally, Chytka has filed a motion to supplement the appellate record with an
extensive list of documents filed in the district court. In addition, she requests
supplementation of the record with documents that may not have been filed with the
district court, such as settlement correspondence, discovery responses, and a binder
of unspecified exhibits. All documents filed in the district court are part of the record
available for our review. Fed. R. App. P. 10(a). Documents regarding settlement
negotiations are not admissible “either to prove or disprove the validity or amount of
a disputed claim.” Fed. R. Evid. 408(a). As for the requested discovery, Chytka has
not attempted to explain its relevance. Further, without the trial transcript, we cannot
review any alleged trial errors. Accordingly, we deny as moot Chytka’s motion to
supplement the record as to the documents in the record, and otherwise we deny the
motion as it fails to present the “rare exception” to Fed. R. App. P. 10(e). See United
States v. Kennedy, 225 F.3d 1187, 1191-92 (10th Cir. 2000) (explaining generally
record cannot be supplemented with documents not filed with the district court).
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VI. Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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