Maultsby v. State of Oklahoma , 46 F. App'x 948 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 17 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EARNESTINE MAULTSBY,
Plaintiff - Appellant,
v. No. 01-6275
(D.C. No. 00-CV-441)
STATE OF OKLAHOMA; (W.D. Oklahoma)
OKLAHOMA MERIT PROTECTION
COMMISSION; OKLAHOMA
DEPARTMENT OF HUMAN
SERVICES; JENNIE BERRY;
CAROLYN BRYAN; CATHY
DUNCAN; WILLIAM FRANKLIN;
JOHNNIE JONES; DAVID REEVES;
RICHARD RESETARITZ; DEBBIE
SEXTON; CHARLES SLEDGE;
LINDA WATSON, in their individual
capacities,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before O’BRIEN and PORFILIO , Circuit Judges, and KANE , ** Senior District
Judge.
*
This order and judgment is not binding precedent, except under the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.
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(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Earnestine J. Maultsby appeals from the grant of summary
judgment in favor of defendant Oklahoma Department of Human Services (DHS)
on her claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
through 2000e-17. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
Plaintiff was employed by DHS beginning on June 3, 1985, as a claims
processor. On May 2, 1995, she hurt her back on the job and filed a worker’s
compensation claim. DHS placed her on leave without pay status in September
or October 1995. On December 9, 1996, the worker’s compensation court held
that she had failed to link her claim for temporary total disability benefits with
her injury and denied total disability benefits. The judge awarded her permanent
partial disability benefits. In late September 1997, DHS gave her two weeks to
come back to work. She did not do so and, after going through a separation
process, DHS fired her on December 10, 1997, for being derelict in her duty.
Proceeding pro se, plaintiff filed suit on March 2, 2000, against the State of
Oklahoma, the Oklahoma Merit Protection Board, DHS, and ten current or former
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DHS employees, alleging race discrimination and retaliatory action. She sought
relief under Title VII; 42 U.S.C. § 1983; the Age Discrimination in Employment
Act, 29 U.S.C. §§ 621-34; the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-12213; and state law.
Most of plaintiff’s claims were dismissed in orders dated February 13,
2001, and March 22, 2001. The remaining defendants moved for summary
judgment on the remaining claims–plaintiff’s Title VII claim against DHS and her
§ 1983 claim against the individual defendants. Plaintiff also moved for summary
judgment and filed a motion to amend her complaint to add more defendants.
The district court granted defendants’ motion for summary judgment and
denied plaintiff’s motion for summary judgment and motion to amend. The court
held that plaintiff's allegations and evidence of race discrimination and retaliation
were too conclusory to show that DHS’s stated reason for firing her–that plaintiff
was derelict in her duty–was a pretext for discrimination or retaliation.
We review the grant of summary judgment de novo. Adler v. Wal-Mart
Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Plaintiff is counseled on appeal.
She argues that she met her burden to establish a genuine issue of material fact as
to pretext which precluded summary judgment in favor of DHS on her Title VII
claim. Aplt. Br. at 4-5. She does not appeal the grant of summary judgment to
the individual defendants on her § 1983 claim. See id. However, in her
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extraordinarily brief argument, plaintiff fails to point to any evidence to establish
pretext. Rather, she faults the district court for not identifying what evidence it
found insufficient. Id. at 7 (stating that the court “decided that Maultsby failed in
her burden of showing pretext without explaining the evidence it considered”).
Fed. R. App. P. 28(a)(9)(A) requires plaintiff, as the appellant, to provide
citations to the “parts of the record on which the appellant relies.” Further,
because DHS met its initial summary judgment burden of showing an absence of
genuine issues of material fact to be tried, the burden falls on plaintiff, as the
nonmoving party, to point to specific facts that establish a genuine issue of
material fact for trial. Adler , 144 F.3d at 670-71. Therefore, it is plaintiff’s duty
to point to specific evidence to show pretext. She has not done so, and this court
will not sift through a voluminous record to make her case for her. See SEC v.
Thomas , 965 F.2d 825, 827 (10th Cir. 1992). In such a situation, we defer to the
district court’s rulings. Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1514
(10th Cir. 1990).
Therefore, the district court’s judgment is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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