FILED
                                                                      United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                        Tenth Circuit

                               FOR THE TENTH CIRCUIT                        October 23, 2020
                           _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 MARK ANTHONY PALZER,

         Plaintiff - Appellant,

 v.                                                           No. 19-5094
                                                  (D.C. No. 4:15-CV-00564-GKF-JFJ)
 COXCOM, LLC, d/b/a Cox                                       (N.D. Okla.)
 Communications Tulsa,

      Defendant - Appellee,

 and

 COX COMMUNICATIONS KANSAS,
 LLC; COX OKLAHOMA TELCOM,
 LLC,

         Defendants.
                           _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges.
                  _________________________________

         Mark Anthony Palzer appeals the district court orders overruling his objection

to a magistrate judge’s discovery order, striking his response to the summary


         *
        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 This order and judgment is not binding precedent,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.
judgment motion filed by his former employer, Defendant-Appellee CoxCom, LLC

(Cox), and granting summary judgment in favor of Cox on his claims alleging race

and age discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                    Background

      Palzer is a Caucasian man over the age of forty. Cox, a telecommunications

company, hired him in 2005 as a customer service representative and promoted him

to an account executive position in small/medium sales group in 2008.

      Cox measures an account executive’s performance against two benchmarks:

(1) sold quota attainment, which is measured by the dollar amount of contracts signed

by the then-potential Cox customer; and (2) installed quota attainment, which is

measured by the actual dollar amount of services ultimately installed and billed to the

customer. Account executives are expected to meet their monthly sales quotas, but

their performance is evaluated using a rolling three-month average, which is expected

to be maintained at a minimum of eighty percent to quota attainment.

      In 2010, Palzer’s then-manager issued Palzer a documented verbal warning

and put him on a thirty-day performance improvement plan (PIP) because his attained

sales quota over the previous four months was only fifty-one percent. He

successfully completed that PIP.

      In February 2012, Cox’s then-Business Sales Director, Tim Jenney, hired

Shelley Stauffer, a Caucasian woman over fifty years old, as the new manager of

Palzer’s sales group. Palzer failed to meet his quota in December 2011 and January

and February 2012, resulting in a three-month average below the eighty-percent

                                          2
minimum. In March 2012, she put him on another PIP, which he successfully

completed at the end of May.

      Meanwhile, at Jenney’s direction, Stauffer began developing a module sales

territory strategy under which the account executives would prospect for and

cultivate customers in assigned zip codes. Prior to its implementation, account

executives could sell in any zip code in the Tulsa, Oklahoma marketplace. In

developing the individual modules, Stauffer relied on internal Cox data about the

number of accounts and projected revenue value of each zip code, and considered

several factors, including the need to provide equal sales opportunities for each

account executive and the account executives’ past performance.

      At the end of February 2012, Stauffer told her team about the planned

transition to the module strategy and asked them to provide her with any specific zip

code preferences for her to consider when she made her assignments. She explained

that in assigning the zip codes, she considered the account executives’ requests in the

order in which she received them, decided “[t]ie breakers” by performance, and

aimed to achieve “[e]quality among all team members” by “balancing total

weight[ed] value with the number of zip codes assigned.” Aplt. App. Vol. 4 at 761

(internal quotation marks omitted); see also

      Among their preferences, Palzer and Chuck Watson, a Caucasian man under

thirty, both requested two of the same zip codes. Unlike Palzer, Watson exceeded his

sales quota between December 2011 and February 2012. Watson’s assigned module

had the highest projected value and included one of the zip codes he and Palzer had

                                           3
both requested. Palzer’s module included the other zip code and had the second

highest projected value. He expressed concerns to Stauffer and Jenney about his

assigned module territory, both with respect to the assignment process and his ability

to be successful in the assigned zip codes, focusing primarily on a comparison of his

and Watson’s modules. Jenney reviewed and approved Stauffer’s proposed modules

for each account executive without making any changes to Palzer’s assigned

territory. The module strategy went into effect in May 2012.

      Between March and May 2012, Stauffer hired three new account executives—

a Caucasian woman and two African-American men, all under forty years old. Then,

after Watson left for another job with Cox, Stauffer replaced him with a Caucasian

man under forty and gave him Watson’s module, including the zip code Palzer had

requested. All of the new hires had the same monthly quotas as the original team

members, but they were subject to a “ramp” period during which they had no or

lower quotas for the first four months of training.

(internal quotation

marks omitted).

      In June 2012, Stauffer reprimanded Palzer in front of numerous other people

for doing something directly contrary to what she had told him to do. A friend of

Palzer’s who witnessed the incident reported it to Jenney and Melissa Cruts, a Human

Resources Business Partner. She told them she thought Palzer was being “singled

out” and that another member of her team told her Stauffer once said, “We have

enough white men in the group. We need to hire diversity.”

716

(internal quotations marks omitted); see also

(internal quotation marks

                                           4
omitted). Jenney believed Stauffer handled the situation “poorly” and, after

consulting with Cruts, counseled her about her conduct.

Cruts met with

Stauffer and then separately with Palzer. Stauffer denied making the “[w]hite guy”

comment, but said she “does want diversity so she may have” made the diversity

comment.

(internal quotation marks omitted). Palzer told Cruts he was on

“Stauffer’s bad side” and that he thought she had an “agenda” but “was not sure what

it might be.”

(internal quotation marks omitted); see also

He

did not make allegations of race or age discrimination.

      Between June and August 2012, Palzer met the minimum three-month rolling

average requirement, but he did not meet quota in September or October. After

consulting with Jenney and Cruts, Stauffer put Palzer on a sixty-day PIP to run

through December 2012. His rolling three-month average for October through

December was sixty-eight percent, so Stauffer placed him on a thirty-day PIP

extension. The PIP indicated that Palzer met his monthly installed quota attainment

four times in 2011 and met his monthly sold quota attainment six times in 2012.

      Palzer exceeded his monthly sold attainment quota and completed the PIP in

January 2013. However, he sold below fifty percent to quota for each of the four

months from February through May 2013. Based on his sales data for the twenty-

nine month period from January 2011 through May 2013, Stauffer determined that

Palzer sold eighty percent or more to quota during only eleven of those months.

After consulting with Cruts and Keith Means, who replaced Jenney as the Director of

Sales, Stauffer recommended that Palzer be discharged for continually failing to meet

                                           5
his sales quota and for failing to improve his performance on a sustained basis

despite being placed on several PIPs. Cruts “support[ed] [the] termination for a

pattern of unsatisfactory performance,”

as did Means and three other

Director-level managers. Cox terminated Palzer in June 2013. All of the people

involved in the termination decision were Caucasian, and five of the six were over

forty.

         After filing a charge with the Equal Employment Opportunity Commission and

obtaining a notice of right to sue, Palzer filed a complaint in Oklahoma state court.

Cox removed the case to federal district court.1 As pertinent here, Palzer asserted

four causes of action: (1) discrimination based on age in violation of the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1);

(2) discrimination based on race in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1); (3) retaliatory discharge in violation of the ADEA

and Title VII; and (4) breach of contract.2 The complaint alleged that Palzer

performed satisfactorily before Stauffer became his manager. It referred to her



         1
        This is the second time this case has been before this court. In the first
appeal, we reversed the district court’s dismissal of Palzer’s complaint for failure to
timely serve summons under Fed. R. Civ. P. 12(b)(5), and remanded with instructions
to give him additional time to complete service in accordance with federal law. See
Palzer v. Cox Okla. Telecom, LLC, 671 F. App’x 1026, 1028 (10th Cir. 2016).
         2
        The complaint also asserted claims under the Oklahoma Anti-Discrimination
Act (OADA), Okla. Stat. tit. 25, §§ 1101-1706. However, the district court granted
Cox’s motion for judgment on the pleadings and dismissed the OADA claims for lack
of subject matter jurisdiction. Palzer does not challenge that order on appeal.

                                           6
alleged comment that there were too many white men in her department and claimed

that she both made work assignments that favored younger African-American men

and gave him territories in which he could not generate new sales. The complaint

further alleged that Cox management ignored his complaints about Stauffer’s actions

and failed to follow its internal policies and procedures for disciplining employees.

      In September 2018, after the discovery deadline had passed and the day before

the deadline for filing dispositive motions, Palzer filed a motion to compel further

deposition testimony pursuant to Fed. R. Civ. P. 30(b)(6). Cox opposed the motion

and timely filed its motion for summary judgment (MSJ). After a hearing, the

magistrate judge denied the motion to compel. The district court denied Palzer’s

objection to the magistrate’s order and, for reasons discussed below, struck Palzer’s

response to the MSJ and granted summary judgment in favor of Cox. Palzer now

appeals those three orders.

                          Order Striking Response to MSJ

      Palzer first contends the district court abused its discretion by striking his late-

filed response to the MSJ. We disagree.

      1. Legal Standards

      We review a district court’s decision whether to accept an untimely filing for

abuse of discretion. Quigley v. Rosenthal, 

, 1237 (10th Cir. 2005). We

apply the same standard in reviewing an order striking a party’s pleading as untimely.

In re Young, 

, 1377 (10th Cir. 1996).



                                            7
      Under Fed. R. Civ. P. 6(b)(1)(B), a district court has discretion to accept a

party’s late filing if the party files a motion showing that the delay was the result of

“excusable neglect.” The determination whether a party has shown excusable neglect

warranting an out-of-time extension is “an equitable one” based on “all relevant

circumstances,” including: (1) “the danger of prejudice to the [opposing party]”;

(2) “the length of the delay and its potential impact on judicial proceedings”; (3) “the

reason for the delay, including whether it was within the reasonable control of the

movant”; and (4) “whether the movant acted in good faith.” Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. P’ship, 

, 395 (1993) (construing the

Bankruptcy Rules’ counterpart to Rule 6(b)(1)(B), which at the time was

Rule 6(b)(2)); see also United States v. Torres, 

, 1161-62 (10th Cir.

2004) (discussing the concept of excusable neglect); Panis v. Mission Hills Bank,

N.A., 

, 1494 (10th Cir. 1995) (applying Pioneer’s definition of

“excusable neglect” in Rule 6(b) context). “The most important factor is the third”

and “an inadequate explanation for delay may, by itself, be sufficient to reject a

finding of excusable neglect.” Perez v. El Tequila, LLC, 

, 1253 (10th

Cir. 2017).

      In the context of late-filed responses to summary judgment motions, we have

held that treating the failure to respond as a waiver of the nonmovant’s “right to file a

response or to controvert the facts asserted in the summary judgment motion” is an

appropriate consequence. Reed v. Bennett, 

, 1194 (10th Cir. 2002); see

also Murray v. City of Tahlequah, 

, 1199 (10th Cir. 2002) (holding

                                            8
that, by failing to file a timely response to the summary judgment motion, the

plaintiff waived the right to respond “and confesse[d] all facts asserted and properly

supported in the [summary judgment] motion”).

      2. Application

      The district court granted Palzer two extensions of time to file his response to

the MSJ. On the last deadline, he filed a motion to exceed the page limit for the

response brief.3 Palzer’s counsel represented that he had already “finished preparing

[his] Response.” Aplee. Supp. App. at 24 (italics omitted). The district court granted

the motion the next morning—the day of the filing deadline—so Palzer could have

filed the response on time. But he did not file it until nine days after the twice-

extended deadline, and he did not file a motion seeking leave to file out of time.

Then, another nine days later (eighteen days after the deadline), Palzer filed a

“supplement[]” to the response with six exhibits that were referred to in but not

attached to the response. Aplt. App. Vol. 10 at 2084. Three of the new exhibits were

affidavits that were dated after the response was filed, which belied counsel’s

representation in the motion for excess pages that he had “finished preparing [the]

response” nearly three weeks earlier. Aplee. Supp. App. at 24 (italics omitted).

Palzer did not file a motion seeking leave to file the supplement.




      3
        Under the district court’s local rules, the motion to exceed the page limit was
due no later than one day before the deadline for filing the response, so Palzer’s
motion was late. N.D. Okla. LCvR 7.2(c).
                                            9
      Cox moved to strike Palzer’s response as untimely. Two days after the

deadline for filing an opposition, Palzer moved to extend the expired response

deadline based on the press of business. The district court granted the motion but

warned counsel that “[n]o further extensions shall be granted.”

Ignoring

the no-further-extension order, Palzer moved for another press-of-business extension

to respond to the motion to strike. The district court denied the motion.

Nevertheless, Palzer filed an unauthorized response three days after the extended

deadline, which the district court struck.

      The court then granted Cox’s motion to strike Palzer’s late-filed response to

the MSJ. In doing so, it considered the Pioneer factors, focusing, as Perez instructs,

on the third factor—whether the delay was in Palzer’s control and the reason for the

delay. In that regard, the court noted that Palzer filed the untimely response without

seeking another extension and filed the Errata/Correction and supplemental exhibits

without seeking leave to do so. Accordingly, the court found he “offer[ed] no reason

. . . outside his control that prevented him from filing a complete response, with all

referenced exhibits, until . . . over three weeks after the deadline,” particularly given

his representation in the motion for excess pages that he had “finished preparing” the

response. Aplt. App. Vol. 11 at 2436 (internal quotation marks omitted). The court

commented that press-of-business extensions are not uncommon and found Palzer

“offer[ed] nothing to suggest that the circumstances of this case are so unique to

render his failure to timely respond excusable,” concluding instead that “the

procedural history of this matter suggests a pattern and practice by [Palzer’s] counsel

                                             10
of disregarding the” rules and the court’s deadlines.

fourth

Pioneer factor—whether the movant acted in good faith—the court found the

“circumstances surrounding [Palzer’s] response suggest bad faith,” citing the

“finished preparing” representation and noting that the untimely response was

incomplete, some of the supporting materials were prepared after the untimely and

incomplete response was filed, and the response was not complete until three weeks

after the extended deadline.

The court concluded that “[t]hese

circumstances strongly suggest that [Palzer’s] counsel engaged in questionable, if not

bad faith[,] conduct[] and delayed filing his response brief in order to obtain

additional time to complete the brief and exhibits without leave of . . . court.”

to the first and second Pioneer factors—prejudice to the

opposing party and the effect of the delay on the proceedings—the court found

Palzer’s continued “delinquencies” prejudiced Cox and delayed the proceedings

because the court had “to strike all remaining scheduling order deadlines a month

prior to the hearing on dispositive motions.”

      The court thus determined that “all four of the relevant factors weigh in favor

of striking” Palzer’s response to the MSJ.

“[s]triking a

summary judgment response is not something this court takes lightly,” but concluded

that “if ever circumstances existed to warrant the action, this is such a case” because

“[t]hroughout the course of this litigation, [Palzer’s] counsel has demonstrated a

disregard for the” rules, the court, and opposing counsel.

      Contrary to Palzer’s suggestion, the court did not strike the response based on

formatting errors or because it failed to address the factual material in Cox’s MSJ

with sufficient particularity, and the court’s reference to counsel’s dilatory tactics in

another case does not mean it struck the response based on considerations unrelated

to this case. The court struck the response because Palzer’s counsel flaunted the

rules and the court’s deadlines and did not establish excusable neglect for filing the

response almost three weeks after the twice-extended deadline without seeking leave

to do so. Palzer takes issue with the court’s finding that the delay prejudiced Cox

and negatively impacted the proceedings, complains about delays Cox allegedly

caused, maintains the court permitted Cox to engage in unnecessarily burdensome

litigation tactics, and quibbles about formatting errors in Cox’s MSJ. But none of

that undermines the district court’s conclusion that Palzer failed to establish that his

untimely filing was the result of excusable neglect. After carefully examining the

record, we conclude the district court acted well within its discretion in striking

Palzer’s response. See 

(affirming denial of late-filed motion

to file untimely response to summary judgment motion based solely on counsel’s

inadequate explanation for the delay, noting that “[h]ad counsel’s error been isolated,

our decision might be different”). And we are not persuaded otherwise by Palzer’s

arguments that he should not be penalized for counsel’s unexcused conduct or that

the court should not have both sanctioned counsel and struck the response. See

(noting “clients must be held accountable for the acts and

omissions of their attorneys” and rejecting the contention that severe sanctions,

                                            12
including dismissal, “because of . . . counsel’s unexcused conduct imposes an unjust

penalty on the client” (internal quotation marks omitted)).

                        Order Granting Summary Judgment

      We also reject Palzer’s argument that the district court erred by granting

summary judgment for Cox.

      As an initial matter, we note that Palzer’s appeal focuses on the portion of the

order granting summary judgment for Cox on his age and race discrimination claims

accruing after May 18, 2013—the claims concerning his termination. The district

court also granted Cox’s MSJ with respect to Palzer’s state law contract claim, his

retaliation claim, and the AEDA and Title VII claims that accrued before May 18,

2013. But Palzer does not challenge those rulings on appeal and has therefore

abandoned any arguments he might have made by not briefing them. See Conroy v.

Vilsack, 

, 1170 (10th Cir. 2013). Accordingly, we do not address the

propriety of that portion of the summary judgment order and consider only the issues

Palzer raised in his opening brief. See Tran v. Trs. of State Colls. in Colo., 

, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed

abandoned or waived.” (internal quotation marks omitted)).

      1. Summary Judgment Standard

      “We review the district court’s grant of summary judgment de novo.” Young

v. Dillon Cos., 

, 1249 (10th Cir. 2006). “[W]e conduct that review

from the perspective of the district court” when it ruled on the motion, “limiting our

review to the materials adequately brought to the attention of the district court by the

                                           13
parties.” Adler v. Wal-Mart Stores, Inc., 

, 671 (10th Cir. 1998). At the

summary judgment stage, we, like the district court, “view facts in the light most

favorable to the non-moving party and draw all reasonable inferences in [his] favor.”

DeWitt v. Sw. Bell Tel. Co., 

, 1306 (10th Cir. 2017) (ellipsis and

internal quotation marks omitted).

       “Summary judgment is only appropriate when there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.” Foster

v. Mountain Coal Co., 

, 1186 (10th Cir. 2016) (internal quotation

marks omitted); see also Fed. R. Civ. P. 56(a) (“The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”).

       The moving party has the initial burden of showing that no genuine dispute of

material fact exists. 

. If the evidence in support of the

motion does not meet the movant’s initial burden, the motion “must be denied even if

no opposing evidentiary matter is presented.” 

(emphasis and

internal quotation marks omitted). But if the movant carries his initial burden, “the

burden shifts to the nonmovant to . . . set forth specific facts . . . from which a

rational trier of fact could find for the nonmovant.” 

.

       A district court may not grant summary judgment based on the nonmovant’s

failure to file a response, but a plaintiff who fails to file a timely response waives the

right to respond and to controvert the facts asserted in the motion. 

; 

. And if the party opposing summary judgment fails

                                            14
to timely respond with evidence that creates a genuine factual dispute, the court may

“consider the [movant’s] fact[s] undisputed for purposes of the motion” and “grant

summary judgment if the motion and supporting materials—including the facts

considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e);

see also 

.

      2. Standard for Proving Employment Discrimination

      In employment discrimination cases, the plaintiff bears “the ultimate burden of

proving [his] employer intentionally discriminated against [him].” Riser v. QEP

Energy, 

, 1199 (10th Cir. 2015). Where, as here, a plaintiff uses

circumstantial evidence to show his employer’s discriminatory intent, we employ the

three-step burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 

, 802-04 (1973). See Frappied v. Affinity Gaming Black Hawk,

LLC, 

, 1056-57 (10th Cir. 2020) (applying McDonnell Douglas to

ADEA claim); Khalik v. United Air Lines, 

, 1192 (10th Cir. 2012)

(same in Title VII context).

      Under that framework, if the plaintiff establishes a prima facie case of

discrimination, the burden shifts to the employer to offer a legitimate

nondiscriminatory reason for its employment decision. 

. If

the defendant does so, the burden shifts back to the plaintiff to show the employer’s

proffered explanation is a pretext for discrimination.

Application

      Here, the parties disputed whether Palzer had established a prima facie case of

discrimination and, in particular, whether showing satisfactory performance is part of

a prima facie case, whether he had to show Cox replaced him with a younger non-

Caucasian person, and whether pretext evidence should be considered at the prima

facie case stage. The district court did not resolve those issues because it concluded

Cox was entitled to summary judgment based on its undisputed evidence of a

legitimate nondiscriminatory reason for terminating Palzer and his failure to raise a

genuine issue of material fact that Cox’s performance-based reason was pretextual.

Neither party challenges the district court’s decision to skip the prima facie case

analysis, and we need not address whether Palzer established a prima facie case to

resolve the appeal.

      Based on the materials submitted with the MSJ, the district court determined

that Cox established that “over the course of his most recent seventeen months of

employment [January 2012 through May 2013], Palzer satisfied his quota only five

times,” and that during the three-month period immediately before his discharge, his

rolling average was below eighty percent. Aplt. App. Vol. 11 at 2507. The court

further found it undisputed that Palzer failed to successfully complete his third and

final PIP, which had expressly noted his unsatisfactory “three month cumulative

installed quota and sold quota” data.

undisputed facts, the district

court concluded that Cox “satisfied its burden of production to demonstrate a

legitimate, non-discriminatory reason for [Palzer’s] termination.”

      The burden of production then shifted to Palzer to show that Cox’s

performance-based reason for his termination was pretextual. But by failing to

timely respond to the MSJ, Palzer confessed the facts set forth in the motion and

waived the right to controvert them. See 

; 

. Accordingly, under Rule 56(e), the district court properly considered those

facts undisputed for purposes of the motion and granted summary judgment on that

basis. See 

-55 (affirming denial of late-filed motion to file

response to motion for summary judgment and granting summary judgment after

reviewing the summary judgment evidence). We reject Palzer’s arguments that the

district court impermissibly resolved facts in Cox’s favor and otherwise failed to

adhere to the proper standards for evaluating evidence at the summary judgment

stage. Those arguments are tethered to his failed challenge to the order striking his

response and are contrary to our holdings in Reed, Murray, and Perez.4




      4
         Although it was not required to do so, the district court went on to consider—
and reject—the pretext arguments Palzer made in his stricken response. We decline
to do so here and therefore do not address his arguments that the district court erred
by considering the fact that Stauffer and other Cox management-level employees
involved in the discharge decision were members of one or both of the protected
classes, and that Cox imposed unattainable production goals, treated him differently
from other similarly-situated non-protected employees by holding them to a different
standard even after their “ramp” periods ended, and failed to follow its internal
procedures. We also disregard Palzer’s recitation in his opening brief of the disputed
pretext-related facts set forth in his stricken response and reject his attempt to put
these facts into dispute on appeal.
                                          17
              Order Overruling Magistrate Judge’s Discovery Order

      Finally, Palzer claims the district court abused its discretion by overruling his

objection to the magistrate judge’s order denying his motion to compel further

discovery. But he makes no meaningful argument attacking that order—he merely

incorporates by reference the arguments he made in his district court pleadings. Our

rules state that “[i]ncorporating by reference portions of lower court or agency briefs

or pleadings is disapproved and does not satisfy the requirements of Federal Rules of

Appellate Procedure 28(a) and (b).” 10th Cir. R. 28.3(B). Accordingly, we do not

address this issue. See Utahns for Better Transp. v. U.S. Dep’t of Transp., 

, 1175 (10th Cir. 2002) (noting we do not address issues not adequately briefed).

                                     Conclusion

      Because Palzer has not demonstrated any reversible error in the district court’s

orders, the judgment is affirmed.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




                                          18