Filed: Apr. 14, 1999
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 14 1999 TENTH CIRCUIT PATRICK FISHER Clerk ARTHUR J. ABELL, JR., Plaintiff - Appellant, v. No. 98-2315 BRUCE BABBITT, Secretary, (D.C. No. CIV-95-942-JC) Department of the Interior and (District of New Mexico) ROGER KENNEDY, Director, National Park Service, Defendants - Appellees. ORDER AND JUDGMENT * Before BRORBY , EBEL and LUCERO , Circuit Judges. Arthur J. Abell, Jr., pro se, appeals the district court’
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 14 1999 TENTH CIRCUIT PATRICK FISHER Clerk ARTHUR J. ABELL, JR., Plaintiff - Appellant, v. No. 98-2315 BRUCE BABBITT, Secretary, (D.C. No. CIV-95-942-JC) Department of the Interior and (District of New Mexico) ROGER KENNEDY, Director, National Park Service, Defendants - Appellees. ORDER AND JUDGMENT * Before BRORBY , EBEL and LUCERO , Circuit Judges. Arthur J. Abell, Jr., pro se, appeals the district court’s..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 14 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ARTHUR J. ABELL, JR.,
Plaintiff - Appellant,
v.
No. 98-2315
BRUCE BABBITT, Secretary, (D.C. No. CIV-95-942-JC)
Department of the Interior and (District of New Mexico)
ROGER KENNEDY, Director,
National Park Service,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL and LUCERO , Circuit Judges.
Arthur J. Abell, Jr., pro se, appeals the district court’s grant of summary
judgment for defendant the National Park Service (“NPS”) on his claims under
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634,
and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
2000e-17. Abell also argues that the district court erred by allowing six separate
attorneys to withdraw as his counsel and by denying his motion to extend the
deadline for discovery. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I
In 1991 and 1992, Abell filed grievances with NPS against four of his
supervisors for failure to evaluate his performance and offer him a permanent
promotion. His relationship with his supervisors subsequently deteriorated,
leading to his suspension for five days in November 1992. Abell then filed two
Equal Employment Opportunity (“EEO”) grievances in January 1993, alleging
discrimination based on age and race.
After he received a second suspension in February 1993 and notification
from NPS that he would be terminated in May 1993, Abell filed another EEO
complaint in May 1993, alleging that his imminent termination was in retaliation
for his previous complaints. He was terminated a month later. Abell then filed
suit in district court in 1995 alleging violations of the ADEA and Title VII.
II
Even construed liberally, as we must do with pro se litigants, see Hughes v.
Rowe , 449 U.S. 5, 9-10 (1980), Abell’s brief provides neither a legal nor factual
basis for reversing the district court’s grant of summary judgment to NPS. He
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identifies no evidence in the record to show that employees who were either
younger or of a different race or sex received favorable treatment from his
employer. See Beaird v. Seagate Tech. Inc. , 145 F.3d 1159, 1165 (10th Cir.),
cert. denied , 119 S. CT. 617 (1998) (citing Ingels v. Thiokol Corp. ,
42 F.3d 616,
621 (10th Cir. 1994)) (holding that plaintiff in discrimination case can show
employer’s intent to discriminate against member of protected class through
circumstantial evidence of less favorable treatment).
Furthermore, the district court correctly found that even if Abell had
established a prima facie case of age, sex, or race discrimination, he failed to
rebut appellees’ evidence of legitimate, nondiscriminatory reasons for their
actions. See Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995).
Because we agree with the district court’s findings and reasoning, and because
appellant gives us no reason to hold otherwise, we affirm the dismissal of his
ADEA and Title VII claims of age, sex, and race discrimination.
The district court also summarily dismissed Abell’s Title VII retaliation
claim because he neither presented direct evidence that his suspension and
termination in 1993 1
were in retaliation for his protected opposition to Title VII
1
The district court found that Abell did not allege age, sex, or race
discrimination allegations in any of his pre-1993 grievances. Therefore, the court
concluded, only those adverse employment actions occurring on or after his
initial EEO complaint on January 29, 1993, were relevant under Title VII.
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discrimination or participation in a Title VII proceeding, nor established an
inference of retaliation. Abell did show that NPS terminated him one month after
he filed his EEO complaint alleging discrimination. “We have recognized that
protected conduct closely followed by adverse action may justify an inference of
retaliatory motive.” Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.
1996) . But we have also said that where discipline had begun prior to protected
action, further disciplinary action “simply completed the disciplinary process
already set in motion,” and does not necessarily lead to an inference of retaliatory
motive. Morgan v. Hilti, Inc.,
108 F.3d 1319, 1324 (10th Cir. 1997). In rejecting
Abell’s retaliation claim, the district court found that his termination was a
culmination of disciplinary actions that NPS had initiated against him before his
initial EEO filing. Because Abell again fails to challenge the district court’s
careful findings and reasoning, we affirm.
III
Appellant argues that the district court abused its discretion in allowing six
successive attorneys to withdraw from representing him. “The grant or denial of
an attorney’s motion to withdraw in a civil case is a matter addressed to the
discretion of the trial court and will be reversed on appeal only when the trial
court has abused its discretion.” Washington v. Sherwin Real Estate, Inc. , 694
F.2d 1081, 1087 (7th Cir. 1982). The record before us shows that in seeking to
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withdraw, at least three of appellant’s former attorneys cited either irreconcilable
differences with their client or their inability to advance his claims against NPS
in good faith. Their withdrawal caused delays that affected both parties as well
as the court. Other than his generalized complaints of prejudice, Abell fails to
provide any evidence or make any legal argument to support his claim that the
district court abused its discretion in allowing counsel to withdraw their
representation.
We review the denial of appellant’s motions to compel discovery and
extend the discovery deadline for abuse of discretion. See GWN Petroleum Corp.
v. OK-TEX Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993). The record
shows that both Abell and NPS complained to the district court that the opposing
side was delaying the discovery process. Abell makes generalized claims of
prejudice that we conclude are without merit. He also argues that NPS should
have provided him with twenty affidavits from its employees that NPS attached
to its motion for summary judgment. These affidavits are not part of the
discovery process, and are protected by the attorney-client and attorney work
product privileges. Moreover, Abell fails to explain why he could not depose
these witnesses himself. Having reviewed the record, we conclude that the
district court did not abuse its discretion in denying Abell’s discovery request.
IV
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For these reasons, we AFFIRM.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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