Temple v. Auto Bank of Kansas, 10th Cir. (2000)
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
NOV 1 2000
PATRICK FISHER
Clerk
MELISA TEMPLE,
Plaintiff-Appellant,
v.
AUTO BANC OF KANSAS, INC.,
doing business as John Chezik Honda,
No. 99-3356
(D.C. No. 98-CV-2533)
(D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before TACHA , EBEL , and LUCERO , Circuit Judges.
Plaintiff Melisa Temple appeals pro se from the
district court s grant of
summary judgment to defendant on her claims of employment discrimination and
retaliation in violation of Title VII and the Kansas Act Against Discrimination.
This order and judgment is not binding precedent, except under the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.
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. Appellants motion to
proceed before this court without prepayment of costs or fees is granted.
We have jurisdiction over this appeal by virtue of 28 U.S.C. 1291. We review
the district court s grant of summary judgment de novo, applying the same
standards as that court pursuant to Fed. R. Civ. P. 56(c).
See Bullington v. United
Air Lines, Inc. , 186 F.3d 1301, 1313 (10th Cir. 1999). On appeal, plaintiff
contends that the district court applied the wrong standards in examining her
claims of sexual harassment and hostile work environment and disputes the
courts recitation of facts in connection with her claims of retaliation as well as
the legal conclusions flowing from those facts.
Plaintiff also alleges additional facts which were not before the
district
court and seeks to supplement the record with additional documents which,
although contained in a list of possible trial exhibits, were not presented to the
district court in response to defendants motion for summary judgment.
Defendant opposes plaintiffs motion to supplement the record and has filed
a motion to strike those portions of plaintiffs appellate briefs which recite or
rely on facts or documents not before the
district court . Because we agree with
defendant that plaintiff was required to make her proof on summary judgment
before the district court and because this court does not review documents that
were not before the
district court when it ruled on the
summary judgment motion,
We note plaintiff was represented by counsel during the proceedings before
the district court, including opposition of defendants motion for summary
judgment.
-2-
we GRANT defendants motion to strike and DENY plaintiffs motion to
supplement the record.
See McKnight v. Kimberly Clark Corp.
, 149 F.3d 1125,
1128 (10th Cir. 1998) (noting burden of nonmoving party on summary
judgment); Boone v. Carlsbad Bancorporation, Inc.
, 972 F.2d 1545, 1549 n.1
(10th Cir. 1992) (stating appellate court will not review documents not before the
district court in making underlying ruling).
After careful review of the
parties arguments on appeal, together with the
record before the district court , we conclude that the district court correctly
decided this case. Therefore, for substantially the reasons set forth in that courts
thorough Memorandum and Order, dated November 3, 1999, the judgment of the
United States District Court for the District of Kansas is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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