Spratling v. Sovereign Staffing Group , 921 F.3d 950 ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2019
Elisabeth A. Shumaker
Clerk of Court
MARQUEL SPRATLING,
Plaintiff - Appellant,
v. No. 18-3209
D.C. No. 2:17-CV-02145-DDC
(D. Kan.)
SOVEREIGN STAFFING GROUP,
INC.,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
Mr. Marquel Spratling is a former employee of Sovereign Staffing,
Inc. He sued under Title VII, claiming racial discrimination and a hostile
work environment. Sovereign Staffing moved for summary judgment based
on timeliness and a failure to prove discrimination or a hostile work
*
Oral argument would not materially help us to decide this appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). We have thus decided
the appeal based on the briefs and record on appeal.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
environment. The district court agreed with both grounds and awarded
summary judgment to Sovereign Staffing.
We affirm. Though Sovereign Staffing urged summary judgment in
district court based on timeliness, Mr. Spratling failed to respond to this
part of the motion. This failure constituted a forfeiture. See Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (Gorsuch, J.).
Without an argument from Spratling, the district court addressed
timeliness and ruled in part that the suit had been untimely. See 42 U.S.C.
§ 20003-16(c) (providing 90 days for a claimant to sue under Title VII
after getting a right-to-sue letter from the EEOC). Though Mr. Spratling
challenges parts of the ruling, he failed to address timeliness in his initial
appeal brief.
He did address timeliness in his appellate reply brief. But even there,
Mr. Spratling did not urge plain error, so we decline to consider his new
argument on timeliness. See Richison, 634 F.3d at 1131 (“the failure to
argue for plain error and its application on appeal [] marks the end of the
road for an argument for reversal not first presented to the district court”);
see also Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.”). The failure to
properly challenge the ruling on timeliness is fatal to Mr. Spratling’s
appeal, so we affirm. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877
2
(10th Cir. 2004) (holding that the plaintiff waived a challenge to the
district court’s alternative ground by challenging only the court’s first
ground for the ruling). 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
Though Mr. Spratling is pro se, he is subject to the same procedural
rules governing other litigants. See United States v. Green, 886 F.3d 1300,
1307–08 (10th Cir. 2018) (stating that a litigant’s pro se status did not
excuse compliance with the general procedural rule); see also Moore v.
Hartley, 608 F. App’x 714, 715 (10th Cir. 2015) (unpublished) (holding
that a pro se litigant’s failure to challenge one of two alternative grounds
for a ruling is fatal on appeal).
3