Mayo v. Fowler Fitness, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 30 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HERLINDA MAYO,
Plaintiff-Appellant,
v. No. 03-2225
(D.C. No. CIV-02-222)
FOWLER FITNESS, INC., doing (D. N.M.)
business as Defined Fitness,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , McKAY , and PORFILIO , 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 two district court memorandum
opinions and orders, which, in total, granted summary judgment under
*
This order and judgment is not binding precedent, except under the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.
Fed. R. Civ. P. 56(c) in favor of defendant Fowler Fitness, Inc. on certain Title
VII 1 employment-discrimination, age-discrimination 2
and state-law claims and
dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)
one employment discrimination claim. On appeal, Ms. Mayo, who is now
proceeding pro se, 3
challenges all aspects of the district court’s decisions. In
addition, she argues she was deprived of her Sixth Amendment right to effective
assistance of trial counsel. We have jurisdiction to consider this appeal under
28 U.S.C. § 1291. 4
We affirm.
In her first amended complaint, Ms. Mayo, who was then represented by
counsel, alleged claims of national origin and age discrimination, retaliation,
breach of an express or implied contract, breach of an implied covenant of good
faith and fair dealing and wrongful termination. In the memorandum opinion and
order granting summary judgment to Fowler Fitness, the district court held that
1
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e through
§ 2000e-17.
2
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634.
3
Because Ms. Mayo is proceeding pro se on appeal, we liberally construe her
appellate 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).
4
Although Ms. Mayo filed her notice of appeal before the district court
entered final judgment, her notice of appeal ripened after that court entered final
judgment. See Prod. Credit Ass’n of S. N.M. v. Alamo Ranch Co. , 989 F.2d 413,
417 (10th Cir. 1993).
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(1) because Ms. Mayo failed to controvert most or all of the facts Fowler Fitness
set forth in its brief in support of its motion for summary judgment, those facts
were deemed admitted; (2) with respect to Ms. Mayo’s age and national origin
discrimination claims, she did not contest Fowler Fitness’ contentions regarding
her claims alleging denial of various positions and denial of her request to
transfer; she failed to establish a prima facie case of discriminatory failure to
promote and discriminatory discharge; Fowler Fitness established legitimate,
nondiscriminatory reasons for all of its actions and Ms. Mayo failed to establish
these reasons were a pretext for discrimination; (3) no implied contract existed to
alter Ms. Mayo’s at-will employment status, and Fowler Fitness’
anti-discrimination policy statement did not create such an implied contract;
(4) the doctrine of the implied covenant of good faith and fair dealing did not
apply to Ms. Mayo’s at-will employment, and no exceptions applied; and
(5) Ms. Mayo did not respond to Fowler Fitness’ arguments concerning her claim
for wrongful, retaliatory discharge; she did not have a cause of action for
wrongful termination; no public policy authorized or encouraged her to report an
alleged theft; and there was no evidence that Fowler Fitness was aware she was
engaging in protected activity. In the other memorandum opinion and order, the
district court dismissed Ms. Mayo’s retaliation claim for lack of subject matter
jurisdiction because she had failed to exhaust her administrative remedies; the
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court also granted summary judgment on her failure-to-promote claims as
time-barred.
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law. We review a grant of summary judgment de novo ,
applying the same standard as the district court. We examine the
record to determine whether any genuine issue of material fact was in
dispute; if not, we determine whether the substantive law was applied
correctly, and in so doing we examine the factual record and
reasonable inferences therefrom in the light most favorable to the
party opposing the motion.
Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation omitted).
Also, we review a dismissal for lack of subject matter jurisdiction de novo.
U. S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (10th Cir. 1999).
Having reviewed the briefs, the district court’s record and the applicable
law pursuant to these standards, we determine that Ms. Mayo has asserted no
reversible error on appeal. We therefore affirm the challenged district court
decisions for substantially the same reasons set forth by that court in its thorough
and well-written memorandum opinions and orders of August 27, 2003 and
October 8, 2003.
Ms. Mayo’s argument that her trial counsel provided ineffective assistance
of counsel is not a basis for reversal of the district court, because there is no
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constitutional right to counsel in a civil action. See Beaudry v. Corr. Corp. of
Am. , 331 F.3d 1164, 1169 (10th Cir. 2003), cert. denied , 124 S. Ct. 1059 (2004).
We also reject any other arguments made by Ms. Mayo that are not
specifically addressed in this order and judgment.
The judgment of the district court is AFFIRMED. We DENY the following
motions Ms. Mayo has filed on appeal: (1) first, second, third and fourth
evidentiary motions filed March 22, 2004, which this court, by an order of the
same date, construed as a motion to supplement the record; (2) “Motion
Memorandum Brief for Damages Award Against Appeelle (sic)” filed April 8,
2004; (3) “Motion Exhaustion Administrative Remedies” filed April 23, 2004;
(4) “Second Motion Genuine Issues of Material Fact” filed April 23, 2004;
(5) “Motion Memorandum Brief for Damages Award Against Appeelle (sic)” filed
April 23, 2004; (6) “Motion-Petition Order to Appelle’s (sic) Records Statement
W Forms Year 1999-2004 Statment (sic) Financial Condition Corporation,
Shareholders and Subsidiaries” filed June 7, 2004; (7) “Motion record from
District Court on appeal 03-3225 and []04-2140 5
to Merit Board Judges” filed
August 4, 2004; (8) motion that various items docketed in appeal No. 04-2150
also be docketed in this appeal filed August 4, 2004; (9) “Motion to Review
5
Appeal No. 04-2150 is a separate appeal, which is not yet at issue. It is
Ms. Mayo’s appeal of the district court’s award of attorney’s fees and costs to
Fowler Fitness.
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Exhibits and Depositions Properly Marked Under Oath on Employer Team
Management Depositions to Prove Evidence of Discrimination Not in Record”
filed August 16, 2004. Also, we DENY any other pending motions or requests
not specifically listed, including Ms. Mayo’s request that we consider her
appendix on appeal.
We DENY Fowler Fitness’ requests for attorney’s fees and costs on appeal
and its motion for sanctions filed June 17, 2004. We DENY as moot (1) Fowler
Fitness’ request filed December 5, 2003 to strike Ms. Mayo’s (a) response to its
corporate disclosure statement, (b) “Material Facts Scope of Evidences and
Exhibits,” (c) exhibits index, and (d) certificate of service; and (2) Fowler
Fitness’ motion filed March 29, 2004 to strike evidentiary references not in the
record set forth in Ms. Mayo’s reply brief.
The mandate shall issue forthwith.
Entered for the Court
Monroe G. McKay
Circuit Judge
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