Stallings v. Progene Biomedical IBT Reference Lab , 203 F. App'x 190 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOYCE D. STA LLINGS,
Plaintiff - Appellant,
v. No. 05-3446
(D. Kansas)
PROGENE BIOM EDICAL IBT (D.Ct. No. 04-CV-2342-KHV)
REFERENCE LAB,
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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.
Joyce Stallings filed a pro se complaint alleging her employer, Progene
Biomedical IBT Reference Lab (Progene), subjected her to discrimination on the
*
This order and judgment is not binding precedent except under the doctrines of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.
basis of her race, sex, age and, perhaps, a disability. 1 She also claimed she was
discharged in retaliation for her opposition to such discrimination. Progene filed
a motion for summary judgment which the district court granted on November 2,
2005. Stallings appeals from that judgment. W e affirm.
“W e review a district court's grant of summary judgment de novo, using the
same standards applied by the district court.” Fuerschbach v. Southwest Airlines
Co., 439 F.3d 1197, 1207 (10th Cir. 2006). View ing the evidence and reasonable
inferences draw n from it in the light most favorable to the nonmoving party, w e
will affirm a grant of summary judgment only where “the pleadings, depositions,
answ ers to interrogatories, and admissions on file, together w ith 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.” Fed. R. Civ. P. 56(c).
However, in this case we affirm the summary judgment because Stallings has
forfeited her right to a review of that decision.
Stallings’ appellate brief contains no substantive argument, no citation to
the record and no legal authority in support of her claims. Other than legal
citations for the standard of review and elements of a prima facie discrimination
case, Stallings’ entire argument consists of the following:
1
Stallings’ complaint alleges Progene discriminated against her “because of
plaintiff’s handicap; failed to accommodate or otherwise make provisions to plaintiff as
required by law.” (Doc. 1, ¶ 19.) However, there is no mention of a disability in later
pleadings.
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I think the district court incorrectly decided the facts. The court
concluded that the evidence cited did not rise to the level of “a
steady barrage of opprobrious racial comment” as required by the law
of the Tenth Circuit to establish a racially hostile w ork environment .
. . . Plaintiff clearly established that she was subjected to a steady
barrage of opprobrious or otherwise unwelcome conduct that was
directed at her because she is a woman and because she is African
American.
(A ppellant’s Br. at ¶¶ 5, 7.)
This conclusory statement is inadequate to preserve any issues for review.
Garrett v. Selby Connor M addux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).
W e recognize “[a] pro se litigant's pleadings are to be construed liberally and held
to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Nonetheless, “[t]his court has
repeatedly insisted that pro se parties follow the same rules of procedure that
govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994)
(quotations omitted). The Federal Rules of A ppellate Procedure require
appellants to provide, under an appropriate heading, an argument containing
“appellant's contentions and the reasons for them, with citations to the authorities
and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9).
Rule 28 “applies equally to pro se litigants,” and requires “more than a
generalized assertion of error, with citations to supporting authority.” Garrett,
425 F.3d at 840-41 (quotation omitted). “[W ]hen a pro se litigant fails to comply
with that rule, we cannot fill the void by crafting arguments and performing the
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necessary legal research.” Id. (quotations omitted)
Liberally construing the pleadings and allowing for a pro se plaintiff's
“failure to cite proper legal authority, h[er] confusion of various legal theories,
h[er] poor syntax and sentence construction, or h[er] unfamiliarity with pleading
requirements,” Hall, 935 F.2d at 1110, does not permit us to “take on the
responsibility of serving as the litigant's attorney in constructing arguments and
searching the record.” Garrett, 425 F.3d at 840.
Stallings’ failure to provide cogent argument or citation to evidence in the
record in both her response to Progene’s motion for summary judgment and on
appeal, leaves us disinclined to exercise “any discretion we may have to delve for
substance in a pro se pleading.” Id.; see Orr v. City of Albuquerque, 417 F.3d
1144, 1151 (10th Cir. 2005) (absent citation to the record on appeal, the district
court properly held plaintiff did not suffer adverse employment action).
Because Stallings has forfeited her appeal by failing to preserve any issue
for review, we also deny her motion for leave to proceed in form a pauperis.
A FFIRME D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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