Castille v. Compliance Solutions Occupational Trainers, Inc. , 57 F. App'x 842 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 4 2003
TENTH CIRCUIT PATRICK FISHER
Clerk
LORETTA CASTILLE,
Plaintiff - Appellant,
No. 02-1363
v.
D.C. No. 01-RB-2523 (OES)
(D. Colorado)
COMPLIANCE SOLUTIONS
OCCUPATIONAL TRAINERS, INC.,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.
Ms. Loretta Castille brings this pro se appeal challenging the district
court’s dismissal of her discrimination action against her former employer,
Compliance Solutions Occupational Trainers, Inc. We affirm the district court
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
and deny Ms. Castille’s motion for leave to proceed in forma pauperis.
Ms. Castille brought an action against Compliance Solutions contending it
violated Title VII’s anti-retailiation provision, see 42 U.S.C. § 2000e-3(a), by
taking action against her for filing a previous complaint of age and race
discrimination. 1 Compliance Solutions filed a motion to dismiss, alleging it did
not employ enough individuals during the time Ms. Castille worked for the
company to subject it to a suit under Title VII. The district court, adopting and
approving the recommendation of a magistrate judge, granted Compliance
Solutions’ motion and dismissed the case with prejudice. The court subsequently
denied Ms. Castille’s leave to file an appeal in forma pauperis on the ground her
appeal was frivolous and lacked good faith.
Compliance Solutions cannot be subject to Ms. Castille’s anti-retaliation
suit unless it satisfies Title VII’s statutory definition of employer. See Walters v.
Metropolitan Educ. Enter., Inc., 519 U.S. 202, 205 (1997). “The term ‘employer’
means a person engaged in an industry affecting commerce who has fifteen or
more employees for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year . . . .” 42 U.S.C. § 2000e(b). Ms.
1
Ms. Castille’s earlier case against Compliance Solutions was dismissed by
the district court and affirmed on appeal. See Castille v. Compliance Solutions,
29 Fed. Appx. 559 (10th Cir.), cert. denied, 122 S.Ct. 2370, pet. for reh’g denied,
123 S.Ct. 21 (2002).
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Castille does not address in either her response to Compliance Solutions’ motion
to dismiss, or in her appeal, whether her claim against Compliance Solutions
meets this threshold requirement. Nor does she make any effort to counter
Compliance Solutions’ evidence of the same. 2
The magistrate judge’s recommendation for dismissal noted Compliance
Solutions provided an affidavit from its president stating the company did not
have fifteen or more employees during the time Ms. Castille was employed there,
or during the twenty weeks preceding her employment. The magistrate judge also
cited a letter Ms. Castille attached to her complaint, in which she stated “when I
started working for [Compliance Solutions they had] 14 employees and when I
left there was 10 employees.” Castille v. Compliance Solutions Occupational
Trainers, Inc., No. 01-RB-2523 at 6 (D. Colo. April 16, 2002) (unpublished
recommendation for dismissal). Based on Ms. Castille’s recitation of the number
of employees at Compliance Solutions, coupled with her former employer’s
affidavit, we determine the district court correctly concluded Compliance
Solutions did not fall within Title VII’s definition of employer, and therefore it
2
While we construe a pro se litigant’s arguments liberally, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1971), it is not appropriate for this court to
“assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). We also note Ms. Castille appears to raise a number
of new issues on appeal. We will not address these issues because they were not
presented to the court below. FDIC v. Noel, 177 F.3d 911, 915 (10th Cir. 1999).
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properly dismissed Ms. Castille’s case.
We also affirm the district court’s order denying Ms. Castille leave to
proceed on appeal in forma pauperis. A plaintiff must show the “existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal” in order to proceed in forma pauperis. DeBardeleben v.
Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “An appeal may not be taken in
forma pauperis if the trial court certifies that it is not taken in good faith.” 28
U.S.C. § 1915(a)(3). Here, the district court issued an order certifying as such.
Based on our previous discussion affirming the district court’s conclusion that
Compliance Solutions did not employ the requisite number of people to subject it
to a Title VII suit, we determine the district court correctly found Ms. Castille’s
appeal lacked legal support and was not in good faith. Accordingly, we DENY
Ms. Castille’s request to proceed in forma pauperis and DISMISS this appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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