Baros v. Advantage Logistics USA West, LLC , 414 F. App'x 130 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 23, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHARON BAROS,
Plaintiff-Appellant,
No. 10-1197
v. (D.C. No. 1:09-CV-00012-CMA-BNB)
(D. Colo.)
ADVANTAGE LOGISTICS USA
WEST, LLC, a Delaware corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and HOLMES, Circuit Judges.
In this diversity action, Sharon L. Baros appeals from the district court’s
grant of summary judgment to her former employer, Advantage Logistics USA
West, LLC, on her claim that Advantage wrongfully discharged her from its
grocery distribution center in retaliation for the exercise of her rights under the
Colorado Workers’ Compensation Act. See, e.g., Lathrop v. Entenmann’s, Inc.,
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
770 P.2d 1367, 1372-73 (Colo. App. 1989) (recognizing public-policy based
wrongful discharge claim where employer allegedly discharged employee for
pursuing workers’ compensation benefits). She contends—in the two-page
argument section of her brief to this court—that there was uncontroverted
evidence not considered by the district court that the job of Unit Picker, which
she had performed from February to November 2005, did not require any lifting
in excess of ten pounds. Aplt. Opening Br. at 10-11. As such, she asserts that
Advantage did not terminate her because the Unit Picker position’s physical
demands exceeded her physical limitations, but rather in retaliation for her receipt
of workers’ compensation benefits.
Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo the
district court’s grant of summary judgment, “applying the same standard as the
district court” under Fed. R. Civ. P. 56. Duvall v. Ga.-Pac. Consumer Prods.,
L.P., 607 F.3d 1255, 1259 (10th Cir. 2010). Under that standard, summary
judgment is proper if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 1 In
1
By amendment effective December 1, 2010, the summary judgment
standard previously enumerated in subsection (c) was moved to subsection
(a), and there was one word change from the previous version—genuine “issue”
became genuine “dispute.” Fed. R. Civ. P. 56 advisory committee note
(2010 Amendments). But the “standard for granting summary judgment remains
unchanged.” Id.-2-
applying this standard, “we consider the evidence in the light most favorable to
the non-moving party.” Id. (internal quotation marks omitted).
The parties are familiar with the facts and procedural history of this case,
and we need not restate either here. See Baros v. Advantage Logistics USA West,
LLC, No. 09-cv-00012-CMA-BNB, 2010 WL 1416812, at *1-4 (D. Colo. Apr. 8,
2010). Having reviewed the briefs, the record, and the applicable law pursuant to
the above-mentioned standard, we hold that Ms. Baros has failed to identify any
reversible error in this case. We therefore AFFIRM the district court’s judgment
for substantially the same reasons stated in its thorough order granting
Advantage’s motion for summary judgment and denying Ms. Baros’s motion for
partial summary judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-3-