Mayo v. Fowler Fitness, Inc. , 115 F. App'x 46 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 10 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HERLINDA MAYO,
Plaintiff-Appellant,
v. No. 04-2150
(D.C. No. CIV-02-222 JB/RLP)
FOWLER FITNESS, INC., doing (D. N.M.)
business as Defined Fitness,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.
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.
Plaintiff Herlinda Mayo appeals from six district court determinations
which addressed various post-judgment motions and awarded attorney’s fees and
*
This order and judgment is not binding precedent, except under the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.
costs to defendant Fowler Fitness, Inc. 1
We exercise jurisdiction over this appeal
under 28 U.S.C. § 1291. We affirm.
Ms. Mayo brought an action against Fowler Fitness, her former employer,
alleging federal and state employment discrimination claims, retaliation, breach of
contract, breach of an implied covenant of good faith and fair dealing, and
wrongful termination. The district court dismissed the retaliation claim for
failure to exhaust administrative remedies, dismissed any discrimination claims
concerning the Group Fitness Director Position as time barred, and granted
Fowler Fitness’s summary judgment motion on all other claims. Ms. Mayo
appealed, and this court affirmed, Mayo v. Fowler Fitness, Inc. , No. 03-2225,
2004 WL 1922270 (10th Cir. Aug. 30, 2004).
While the appeal was pending, Fowler Fitness moved in the district court
for attorney’s fees of $95,889.50 and costs of $567.13, pursuant to 42 U.S.C.
§ 2000e-5(k) and Fed. R. Civ. P. 54(d). Granting the requests in part and denying
them in part, the district court awarded Fowler Fitness $15,003.94 in attorney’s
fees and $489.08 in costs. The district court found that Fowler Fitness was
entitled to an award of attorney’s fees and costs for only the discrimination claims
decided on their merits. The court limited the award to the attorney’s fees and
1
Because Ms. Mayo is proceeding pro se, we liberally construe her district
and appellate court filings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon , 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
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costs Fowler Fitness incurred to defend these discrimination claims after
September 5, 2003, the date that Ms. Mayo should have realized these claims
lacked merit and that she should have accepted Fowler Fitness’s settlement offer.
Also, considering Ms. Mayo’s ability to pay the award, the court declined to
reduce or eliminate it based on her financial situation.
On appeal, Ms. Mayo argues the district court abused its discretion in
awarding Fowler Fitness attorney’s fees and costs, punished her for bringing the
underlying action in good faith, failed to take her finances into account when
awarding attorney’s fees, and granted an unjust award. We review the district
court’s awards of attorney’s fees and costs under an abuse of discretion standard.
Jane L. v. Bangerter , 61 F.3d 1505, 1509, 1517 (10th Cir. 1995); Carter v.
Sedgwick County , 929 F.2d 1501, 1506 (10th Cir. 1991). Upon careful review of
the record on appeal and relevant case law, we conclude the district court did not
abuse its discretion in awarding attorney’s fees and costs. We agree with the
awards for substantially the reasons set forth in the district court’s memorandum
opinions and orders dated June 15, 2004. R., Vol. III, Doc. 150, 154.
In addition, we conclude the district court did not abuse its discretion in
entering other memorandum opinions and orders (1) denying Ms. Mayo’s request
to submit documents and depositions because they were irrelevant to the
attorney’s fees and costs issue, she failed to highlight relevant portions of the
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lengthy submissions, and they might contain new arguments, see id. , Doc. 149; (2)
dismissing several of Ms. Mayo’s pleadings, including a motion for costs against
Fowler Fitness, as moot in light of the court’s attorney’s fees ruling, see id. , Doc.
151, 152; (3) denying Fowler Fitness’s motion to prohibit Ms. Mayo from filing
additional pleadings, but excusing it from responding to any further pleadings she
filed without a specific court request for a response, see id. , Doc. 153; and (4)
considering Ms. Mayo’s ability to pay the award of attorney’s fees and costs, see
Gibbs v. Clements Food Co. , 949 F.2d 344, 345 (10th Cir. 1991), and declining to
either reduce or eliminate the award, see R., Vol. III, Doc. 154.
To the extent Ms. Mayo seeks to challenge the district court’s disposition
of the merits of her underlying federal and state employment claims, she cannot
do so. Our prior decision regarding those claims, Mayo , 2004 WL 1922270,
stands as the law of the case. See, e.g. , United States v. Webb , 98 F.3d 585, 587
(10th Cir. 1996) (“Under the law of the case doctrine, findings made at one point
during the litigation become the law of the case for subsequent stages of that
same litigation.”). Nor is this the appropriate proceeding for Ms. Mayo to
complain about her district court legal representation.
We DENY as moot Ms. Mayo’s (1) “Motion-Petition Execution of
Judgment Against Emp[l]oyee Denied to Employer” filed July 12, 2004;
(2) objection filed July 30 to Fowler Fitness’s corporate disclosure statement;
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(3) various other objections to Fowler Fitness’s corporate disclosure statement
and objections to its certificate of interested parties; and (4) objection filed
August 20 to Fowler Fitness’s motions to strike filed August 16. We DENY
Ms. Mayo’s many requests for sanctions against Fowler Fitness.
We also DENY as moot Fowler Fitness’s (1) request that this court strike
the documents attached to Ms. Mayo’s brief in chief; (2) motion filed July 28 to
either strike Ms. Mayo’s July 12 motion or require her to redraft the motion in
conformity with the Federal Rules of Appellate Procedure, and its request that we
dismiss this appeal because Ms. Mayo did not file a timely docketing statement;
and (3) motions filed August 16 to strike Ms. Mayo’s objection to its corporate
disclosure statement, to strike her entry of appearance and certificate of interested
parties, and to bar her from filing pleadings without court approval. We DENY
Fowler Fitness’s many requests for attorney’s fees, costs, and sanctions on appeal.
Finally, we DENY any other motions, objections, or requests made by
either party that are not specifically addressed in this order and judgment.
We AFFIRM. The mandate shall issue forthwith.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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