Ochoa v. Delaney ( 2002 )


Menu:
  •                            UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________________
    No. 01-60662
    Summary Calendar
    Docket No. 1:99-CV-379-GR
    Docket No. 1:00-CV-362-GR
    _______________________
    MARIA S. OCHOA,
    Plaintiff-Appellant,
    versus
    DR. LAWRENCE J. DELANEY, Acting Secretary,
    Department of the Air Force,
    Defendant-Appellee.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Mississippi
    _________________________________________________________________
    April 25, 2002
    BEFORE JONES, SMITH and EMILIO M. GARZA, Circuit Judges:
    PER CURIAM:*
    Ochoa filed a Title VII action alleging retaliation and
    age    discrimination         and   claims   for    intentional    infliction   of
    emotional distress and negligence.                 Ochoa is a child-care worker
    employed by the Air Force since 1979.                 In 1994, Ochoa became the
    Child Development Director of the East Region at Keesler Air Force
    Base       (pay    level    GS-1701-09).      She    was   later   reassigned   to
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    Coordinator of the Family Day Care Program (also GS-1701-09).
    Ochoa was     not    happy    with   this    transfer     and   other      employment
    actions, and filed numerous complaints with the EEOC alleging
    racial and age discrimination.              Between 1995 and September 1999,
    Ochoa   filed   at    least    10    complaints    with     the    EEOC,     alleging
    retaliation, non-selection and other forms of racial and age
    discrimination.       These complaints are the subject of this suit.
    The district court granted summary judgment and dismissed all
    claims.
    As an initial matter, it is important to note that Ochoa
    did not file a timely response to summary judgment before the
    district court.       See District Court’s Memorandum Opinion at 1.n.1.
    Many of Appellant’s arguments in this appeal are based on evidence
    never     presented    to     the    district     court.          This     court    has
    contemporaneously       granted      a   Motion    to      Strike        Portions   of
    Appellant’s Record Excerpts that were not presented to the district
    court. Pursuant to F.R.A.P. 10, this court reviews only the record
    that was before the district court.
    Ochoa’s failure to respond to the summary judgment motion
    and failure to develop a record below are fatal to her case.                        See
    Topalian v. Ehrman, 
    954 F.2d 1125
    , 1131 (5th Cir. 1992) (explaining
    that this court’s inquiry is “limited to the summary judgment
    record before the trial court: the parties cannot add exhibits,
    depositions, or affidavits to support their positions on appeal.”).
    We have reviewed the district court opinion in light of the
    2
    evidence before that court, which carefully applied the proper
    legal standards.   Having done so, we find no reversible error of
    law or fact and AFFIRM the court’s judgment.
    AFFIRMED.
    3
    

Document Info

Docket Number: 01-60662

Filed Date: 4/29/2002

Precedential Status: Non-Precedential

Modified Date: 4/18/2021