Clancy v. Miller ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 8, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JENITA CLANCY,
Plaintiff - Appellant,
v. No. 20-3036
(D.C. No. 5:18-CV-04106-SAC)
CHRISTOPHER C. MILLER*, Acting (D. Kan.)
Secretary of Defense,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges.
_________________________________
Pro se plaintiff Jenita Clancy started working for the Defense Commissary
Agency at Fort Riley in November 2015. In the summer and fall of 2016, she
received negative performance evaluations. And in November 2016, she resigned
*
We have substituted Christopher C. Miller, the current acting Secretary
of Defense, for Mark T. Esper, the former Secretary of Defense. See Fed. R. App. P.
43(c)(2).
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
after a meeting with her supervisors. She later unsuccessfully tried to withdraw her
resignation.
Clancy filed this lawsuit just over a year later, claiming under the
Rehabilitation Act, 29 U.S.C. § 794, that her supervisors at Fort Riley discriminated
against her and subjected her to a hostile work environment because of her
disability—anxiety, depression, and post-traumatic stress disorder (PTSD). The
district court granted summary judgment to the defense.
In this appeal, Clancy challenges the summary judgment and several other
rulings the district court made along the way. We construe her pro se pleadings
liberally, without going so far that we act as her advocate. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). Seeing no error, we affirm.
I. Discretionary Rulings
Clancy argues that the district court erred when it (1) denied her leave to
amend her complaint, (2) excluded her exhibits under local rules, and (3) denied her
leave to file a surreply opposing summary judgment. We review these rulings for an
abuse of discretion. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir.
2019) (leave to amend); Certain Underwriters at Lloyd’s London v. Garmin Int’l,
Inc., 781 F.3d 1226, 1230 (10th Cir. 2015) (applying local rules); Green v. New
Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (surreply). “A district court abuses its
discretion if its decision is arbitrary, capricious, whimsical, or manifestly
unreasonable.” Tesone, 942 F.3d at 989 (internal quotation marks omitted).
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A. Motion to Amend the Complaint
In May 2019, after the deadlines for discovery and motions to amend had
passed, Clancy sought to add claims for retaliation and constructive discharge under
Title VII of the Civil Rights Act of 1964. She explained that she realized in March
2019 that she could not bring some of her claims under the Rehabilitation Act, and
she sought to correct her mistake by adding claims under Title VII. The district court
denied the motion, finding that allowing the amendment would require more
discovery and that Clancy did not offer a persuasive reason to allow the amendment.
District courts should freely give leave to amend “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). But a “schedule may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). In this context, good cause
exists if the movant cannot meet the schedule’s deadlines despite diligent efforts.
Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir.
2014). “A party seeking leave to amend after a scheduling order deadline must
satisfy both the Rule 16(b) and Rule 15(a) standards.” Tesone, 942 F.3d at 989. If
the moving party fails to satisfy either standard, then the district court does not abuse
its discretion by denying leave to amend. Id.
We cannot say that the district court abused its discretion. Clancy’s oversight
does not amount to good cause. See Gorsuch, 771 F.3d at 1240 (“If the plaintiff
knew of the underlying conduct but simply failed to raise tort claims, however, the
claims are barred.”). True, as Clancy highlights, she mentioned Title VII, retaliation,
and constructive discharge in earlier pleadings. But that fact does not persuade us
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that the district court erred; as the district court implied, that fact may hurt Clancy’s
cause because it suggests that she could have understood the law and followed court
rules. And pro se litigants must follow the same procedural rules as other litigants.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). We recognize that Clancy
does not think an amendment would have required more discovery, but the court’s
finding is supported by the defense’s statement that it would have sought another
deposition and another expert evaluation if the court had allowed the amendment.
B. Excluding Exhibits
After the defense moved for summary judgment, Clancy sent the district court
clerk a box that apparently contained her medical records from 2013 onward. The
district court directed the clerk not to file the exhibits unless Clancy sought and
received leave to file them under a local rule. Clancy responded by asking
permission to file the exhibits, pointing out that the magistrate judge had granted her
motion to file conventionally records that were too large to file electronically. Her
response did not, however, explain the relevance of the exhibits. The district court
entered an order explaining that the magistrate judge’s “order did not concern the
[current] situation,” that Clancy had not shown “that the record should be cluttered
with more than a thousand pages of medical records,” that the exhibits would not be
filed without leave, and that any motion seeking leave should explain the exhibits’
relevance to summary judgment. Suppl. R. at 76. After this order—and after the
court had granted summary judgment—Clancy again sought permission to file the
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exhibits, insisting that the “medical records are absolutely necessary” but failing to
describe the information in them. Id. at 82. The court denied her request.
Under the district court’s local rules, “[b]ulky or voluminous materials should
not be filed in their entirety . . . unless the court finds the materials essential and
grants leave to file them. The court may strike any pleading or paper filed in
violation of this rule.” D. Kan. Rule 5.1(f). This rule supports the district
court’s decision to exclude Clancy’s exhibits until she sought and received leave to
file them. The court did not abuse its discretion. See Certain Underwriters, 781 F.3d
at 1230–31 (finding the court acted within its discretion when it rejected 700 pages of
exhibits that did not comply with local rules).
In addition to arguing that the district court improperly excluded her exhibits,
Clancy seeks to add them to the appellate record. “We undoubtedly have discretion
to deny a motion to supplement the record on appeal when the materials sought to be
added to the record were never before the district court.” Cornhusker Cas. Co. v.
Skaj, 786 F.3d 842, 862–63 (10th Cir. 2015). We exercise that discretion here and
deny Clancy’s motion, because the exhibits’ contents would not affect our analysis.
The district court did not exclude the exhibits based on their contents; it excluded
them because Clancy did not seek and obtain leave to file them. Because Clancy did
not describe to the district court what the exhibits say or explain how they relate to
the case, we could not fault the district court’s decision no matter the exhibits’ actual
contents. And having concluded that the district court acted within its discretion
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when it excluded the exhibits, “we will not now consider [them] on appeal.” Certain
Underwriters, 781 F.3d at 1230.
C. The Surreply
Three days after the district court granted summary judgment, Clancy moved
for more time to file a surreply. The district court denied the motion, in part because
Clancy did not offer grounds supporting her request.
Courts should generally allow the nonmoving party to respond to material—
whether evidence or argument—that the movant raises for the first time in a reply.
Green, 420 F.3d at 1196. If a court does not rely on the new material, however, then
“it does not abuse its discretion by precluding a surreply.” Id. (internal quotation
marks omitted).
The defense’s reply included exhibits related to Clancy’s claims that she told
her supervisors about her mental-health conditions and that her employment records
identified her as having a psychiatric disability. The district court assumed these
claims to be true in its summary-judgment analysis. So it did not rely on any new
material in the reply in granting summary judgment, and it did not abuse its
discretion by precluding a surreply. See id. Still, we will grant Clancy’s motion to
add her surreply to the record and consider it as we review the summary judgment,
rendering harmless any possible error in precluding the surreply.
II. Summary Judgment
We review de novo a district court’s decision to grant summary judgment,
applying the same standard governing the district court. Rivero v. Bd. of Regents of
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Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 2020). 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). “We view all facts and evidence
in the light most favorable to the party opposing summary judgment.” Craft Smith,
LLC v. EC Design, LLC, 969 F.3d 1092, 1099 (10th Cir. 2020) (internal quotation
marks omitted).
“The Rehabilitation Act prohibits the federal government from discriminating
against an ‘otherwise qualified individual with a disability.’” Sanchez v. Vilsack,
695 F.3d 1174, 1177 (10th Cir. 2012) (quoting 29 U.S.C. § 794(a)). The
Rehabilitation Act incorporates the employment-discrimination standards in the
Americans with Disabilities Act (ADA), see 29 U.S.C. § 794(d), so cases addressing
ADA claims may inform our analysis, see Rivero, 950 F.3d at 758.
Clancy’s discrimination and hostile-work-environment claims require her to
show that she is a “qualified individual with a disability.” 29 U.S.C. § 794(a).1
“When the claim is for discrimination based on an actual disability, the plaintiff must
show ‘a physical or mental impairment that substantially limits one or more major
life activities.’” Tesone, 942 F.3d at 995 (quoting 42 U.S.C. § 12102(1)(A)).2 Major
1
We assume that Clancy may bring a hostile-work-environment claim under
the Rehabilitation Act.
2
A person can also establish a disability by showing a “record of such an
impairment” or that he or she is “regarded as having such an impairment.” 42 U.S.C.
§§ 12102(1)(B), (C). At least at one point in the district court, Clancy claimed to
have both an actual disability and a record of one. She appears only to pursue her
claim of an actual disability on appeal, abandoning any claim based on a record of a
disability. In any event, Clancy has not identified any competent evidence showing
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life activities include, for example, brain function, sleeping, “reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. § 12102(2).
A plaintiff may show a disability through expert testimony. Tesone, 942 F.3d
at 996. Indeed, some cases require expert testimony: “where injuries complained of
are of such character as to require skilled and professional persons to determine the
cause and extent thereof, they must be proved by the testimony of medical experts.”
Id. at 997 (internal quotation marks omitted). But not every case requires expert
testimony: “when a plaintiff alleges an impairment that a lay jury can fathom
without expert guidance, courts generally do not require medical evidence to
establish an ADA disability.” Id. (internal quotation marks omitted).
Clancy submitted a letter from Dr. Richard Mulrenin, dated more than a year
after she resigned from Fort Riley. The letter says that she had been diagnosed with
major depressive disorder and PTSD, with “distressing symptoms including
depressed moods, acute anxiety, occasional suicidal ideation and a marked difficulty
concentrating.” R. vol. 1 at 25. The letter added that financial stress during the
preceding year had exacerbated her symptoms. Dr. Mulrenin’s progress notes from
October 7, 2015, about a month before Clancy’s first day on the job, removed her
PTSD diagnosis and opined that she did not meet the criteria for major depression.
Clancy ultimately told the court, however, that she would not present any expert
testimony. The district court concluded that, without expert testimony, she could not
that the disability listed in her employment records substantially limited a major life
activity.
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prove that her depression, anxiety, and PTSD substantially limited at least one major
life activity while she worked at Fort Riley.
We agree with the district court. As a lay witness, Clancy could describe her
symptoms—for example, that she has difficulty concentrating. See Felkins v. City of
Lakewood, 774 F.3d 647, 652 (10th Cir. 2014). She could not, however, “diagnose
her condition . . . or state how that condition causes limitations on major life
activities, for those are clearly matters beyond the realm of common experience and
require the special skill and knowledge of an expert witness.” Id. (ellipsis and
internal quotation marks omitted). Without expert testimony to diagnose her
condition while she worked at Fort Riley, and further to link the diagnosis to a
limitation on a major life activity, Clancy did not offer enough evidence to create a
genuine dispute over whether she had an actual disability.
Because Clancy could not show an actual disability, we need not consider the
district court’s additional reasons for granting summary judgment.
III. Costs
The district court ordered that the defense could recover costs from Clancy
and that she could recover nothing. Clancy does not explain, and we do not see,
why the court erred by awarding costs to the defense as the prevailing party under
Fed. R. Civ. P. 54(d)(1). She does, however, assert that she should have received a
remedy under Fed. R. Civ. P. 56(h) because the defense submitted declarations in bad
faith. But she does not claim to have requested that remedy in the district court, and
our review of the record uncovered no such request. We do not consider this new
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claim. See Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229, 1232 (10th Cir. 1997)
(“Generally, an appellate court will not consider an issue raised for the first time on
appeal.”).
IV. Conclusion
Clancy’s motion to supplement the record is granted in part (as to her surreply)
and denied in part (as to the exhibits). The district court’s judgment is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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