FILED

United States Court of Appeals

Tenth Circuit

February 3, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAREN BURNETT,

Plaintiff-Appellant,

v.

SOUTHWESTERN BELL

TELEPHONE, L.P.,

Defendant-Appellee.

No. 07-3126

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 05-CV-2514-KHV)

Alan V. Johnson of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C.,

Topeka, Kansas, for Plaintiff-Appellant.

Jerald W. Rogers of Triplett, Woolf & Garretson, LLC, Wichita, Kansas, for

Defendant-Appellee.

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Plaintiff-Appellant Karen Burnett appeals the district court’s grant of

summary judgment for Defendant-Appellee Southwestern Bell Telephone
-2-

(“SWBT”) on her retaliatory discharge claims under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. §§ 2611 et seq., and the Employee Retirement

Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. We exercise

jurisdiction under 28 U.S.C. § 1291 and AFFIRM the judgment of the district

court.

DISCUSSION

Ms. Burnett filed suit against SWBT in federal district court, alleging that

SWBT had terminated her in retaliation for her exercise of her rights under the

FMLA and ERISA. The district court granted SWBT’s motion for summary

judgment on the FMLA claim, denied Ms. Burnett’s motion for reconsideration,

and ultimately granted summary judgment for SWBT on the ERISA claim as well. 

Ms. Burnett now appeals the district court’s entry of summary judgment in favor

of SWBT on both claims. Ms. Burnett asserts that the district court erred in

concluding that she had not demonstrated that genuine issues of material fact

existed on her claims.

We review the district court’s grant of summary judgment de novo. Garrett

v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). “[T]o conduct our

de novo review, we must necessarily review the materials before the district

court.” Sanpete Water Conservancy Dist. v. Carbon Water Conservancy Dist.,

226 F.3d 1170, 1175 (10th Cir. 2000). Together with her opening brief, Ms.

Burnett filed an appendix as instructed by Fed. R. App. P. 30(a) and 10th Cir. R.
-3-

30.1.

The record on appeal comprises all of “the original papers and

exhibits filed in the district court; . . . the transcript of

proceedings[,] if any; [and] . . . a certified copy of the docket

entries prepared by the district clerk.” Fed. R.App. P. 10(a). 

However, in this Circuit we leave the record on appeal in the

district court and rely primarily on an appendix that the parties

are obligated to produce, containing the relevant parts of the

record. 10th Cir. R. 30. We sometimes refer to this appendix

colloquially as the record on appeal, but technically it is not. 

The appellant’s appendix must be “sufficient for considering

and deciding the issues on appeal.” 10th Cir. R. 30.1(A)(1). If

the appendix is insufficient on an issue that the appellee

wishes us to decide, he may file a supplemental appendix of

his own. 10th Cir. R. 30.2(A)(1). If the appendix and its

supplements are not sufficient to decide an issue, we have no

obligation to go further and examine documents that should

have been included, and we regularly refuse to hear claims

predicated on record evidence not in the appendix. 10th Cir.

[R.] 30.1(A)(3). However, we retain the authority to go

beyond the appendix if we wish, because all of the . . .

documents and exhibits filed in district court remain in the

record regardless of what the parties put in the appendix.

Milligan-Hitt v. Bd. of Trs. of Sheridan County Sch. Dist. No. 2, 523 F.3d 1219,

1231 (10th Cir. 2008) (citations and footnotes omitted). Lest the central point be

lost, “[a]n appellant who provides an inadequate record does so at his peril.”

Dikeman v. Nat’l Educators, Inc., 81 F.3d 949, 955 (10th Cir. 1996); see Rios v.

Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (“It is not this court’s burden to hunt

down the pertinent materials. Rather, it is Plaintiff’s responsibility as the

appellant to provide us with a proper record on appeal.”). On appeal, Ms. Burnett

has failed in her responsibility to produce a sufficient record in two major
-4-

respects.

First, her appendix inexplicably does not contain copies of SWBT’s

motions for summary judgment, her responses, SWBT’s replies, or her complete

surreply as mandated by 10th Cir. R. 10.3(A), 10th Cir. R. 10.3(D)(2), Fed. R.

App. P. 30(a)(1), and 10th Cir. R. 30.1(A)(1). When, as here, the appeal is from a

grant of one or more motions for summary judgment, the appellant’s appendix

must include both the motions “and any responses and replies filed in connection

with” those motions. 10th Cir. R. 10.3(D)(2); see Sanpete Water Conservancy

Dist., 226 F.3d at 1175; 16A Charles Alan Wright, Arthur R. Miller, Edward H.

Cooper & Catherine T. Struve, Federal Practice and Procedure § 3956.1, at 627-

28 (4th ed. 2008) [hereinafter Federal Practice] (“Of course, when compiling the

record, an appellant challenging the grant of summary judgment should make sure

to include in the record all the materials considered by the district court.”); see

also Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1292 (10th Cir. 2000)

(“Because [appellant] claims that the district court’s finding that there was no

genuine issue of material fact was contrary to the evidence, it must ‘include in the

record a transcript of all evidence relevant to that finding or conclusion.’”

(quoting Fed. R. App. P. 10(b)(2))).

In other words, the record that Ms. Burnett provided to us in the form of

her appendix does not reveal to us the arguments that were made to the district

court regarding the orders that Ms. Burnett now asks us to reverse. See Travelers
-5-

Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118, 1119 (10th Cir. 2003) (“A

party who seeks to reverse the decision of a district court must provide an

adequate record for this court to determine that error was committed.”); Chasteen

v. UNISIA JECS Corp., 216 F.3d 1212, 1221-22 (10th Cir. 2000) (upholding the

district court’s grant of summary judgment on statute of limitations grounds

where appellant “has not included in the appellate record any of the motions filed

by the parties . . . or stays issued by the court”); cf. Questar Pipeline Co., 201

F.3d at 1292 (“[W]e are reluctant to overturn a district court’s ruling without

being able to examine the evidence or arguments it heard in making its ruling.”).

Consequently, among other things, we are impeded in determining what

arguments Ms. Burnett properly preserved for appellate review. See Dikeman, 81

F.3d at 954-55 (“Further, we are not convinced that the plaintiffs adequately

documented that this issue was preserved for appeal, and we thus refrain from

addressing the substance of the plaintiffs’ claim.”); Federal Practice, supra, §

3956.1, at 641 (“[T]he appellant should make sure that the record on appeal

includes the material necessary to demonstrate that the contentions it raises on

appeal were also raised below.”). See generally Hicks v. Gates Rubber Co., 928

F.2d 966, 970 (10th Cir. 1991) (“[T]he general rule that an appellate court will

not consider an issue raised for the first time on appeal applies.”).

Second, and more significantly, our review is greatly hobbled by Ms.

Burnett’s failure to file many of the underlying exhibits that supported the
1 Although an appellee has no parallel duty to produce an appendix, it

(continued...)

-6-

parties’ arguments regarding the motions for summary judgment. The parties rely

upon the evidence that apparently was in these exhibits in their arguments on

appeal. However, the failure to provide us with numerous relevant exhibits

violates 10th Cir. R. 10.3(A), 10th Cir. R. 10.3(D)(2), and 10th Cir. R.

30.1(A)(1). Rule 10.3(D)(2) specifically requires that “relevant portions of

affidavits, depositions and other supporting documents . . . filed in connection

with” the summary judgment motions be included.

Further, and most troubling, the district court expressly relied on at least

three of the missing exhibits in granting summary judgment for SWBT. For

example, in both summary judgment orders the district court quotes extensively

from an e-mail Ms. Burnett’s manager sent to two other supervisory employees

less than two weeks prior to Ms. Burnett’s termination. This e-mail summarizes

Ms. Burnett’s attendance and disciplinary history with SWBT, and both parties

refer to this e-mail in their arguments to this Court regarding whether there was a

genuine dispute over the material issue of the supervisors’ retaliatory intent. 

However, Ms. Burnett did not include this e-mail in her appendix. Absent

provision of this and the other exhibits, we are unable to verify their contents or

glean an understanding of the context of the language from the exhibits that the

district court quotes in its orders.1
1

(...continued)

may supplement the appellant’s filing with its own. 10th Cir. R. 30.2(A)(1). 

SWBT did file a supplemental appendix, but it does not contain the relevant

pleadings nor all of the missing exhibits. Thus, the additional appendix did not

remedy Ms. Burnett’s omission such that we could proceed to reach the merits of

this case relying on these appendices. Cf. Harvey Barnett, Inc. v. Shidler, 338

F.3d 1125, 1136 n.19 (10th Cir. 2003) (reversing a grant of summary judgment

despite appellants’ “inexcusabl[e]” “failure to meet basic standards” and to

include underlying pleadings in the record when “[i]n many instances, appellants’

record-designation deficiencies were bailed out by the appellees themselves”);

MacArthur v. San Juan County, 309 F.3d 1216, 1218 (10th Cir. 2002) (“This

being an appeal from a Fed.R.Civ.P. 12(b)(6) dismissal for the complaint’s failure

to state a claim upon which relief may be granted, Rule 30(a)(1)(B) requires, at a

minimum, inclusion in the appendix of the complaint at issue. Were it not for

appellees’ submission of the complaint, we would be inclined to affirm the

district court’s dismissal on this basis alone.” (citation omitted)).

-7-

Without the parties’ summary judgment exhibits, appropriate review of the

district court’s orders is not possible, because we do not have important evidence

the district court considered when deciding that SWBT was entitled to summary

judgment. See Milligan-Hitt, 523 F.3d at 1232 (“If the defendant wishes us to

review the district court’s conclusion that he violated the Constitution, he should

have put evidence into the appendix that would allow us to review the challenged

decision.”); Travelers Indem. Co., 340 F.3d at 1121 (“The failure of both

appellant and cross-appellant to include in the appendix the document that

controls the resolution of the issues on appeal—the Travelers insurance policy

issued to Autobody—deprives them of the right to challenge the judgment of the

district court.”). While we could access fairly readily the motions, responses, and

replies discussed above on the district court’s electronic filing system or
-8-

otherwise, should we choose to do so, see Been v. O.K. Indus., Inc., 495 F.3d

1217, 1235 n.13 (10th Cir. 2007); Steele v. Thiokol Corp., 241 F.3d 1248, 1250

n.1 (10th Cir. 2001), the essential supporting exhibits were filed under seal in the

district court. The sealed nature of the exhibits means that even this Court is

precluded from accessing them absent a specific request to the district court

clerk’s office. Although the parties do not specifically dispute the contents of the

missing exhibits, we are not inclined to consider reversing the district court based

upon the parties’ tacit assurances that we have before us all of the relevant

matter—for example, the language from the missing exhibits that the district court

quoted in its orders. See Travelers Indem. Co., 340 F.3d at 1120 (“The parties

apparently believe that only four words of that policy language are relevant to the

appeal and cross-appeal before us. . . . We are unwilling to reverse the decision of

the district court based on a guess—even what we may think to be an informed

guess—regarding the content of the policy.”). Indeed, because the exhibits are

filed under seal, we cannot even discern the nature, and thus relevancy, of many

of the missing exhibits as they lack descriptive titles on the docket sheet.

This Court is not obligated to remedy these failures by counsel to designate

an adequate record. 10th Cir. R. 10.3(B); 10th Cir. R. 30.1(A)(3); see Rios, 67

F.3d at 1553. Our procedural rules should not be considered “empty gestures,” as

“[w]e have repeatedly enforced them.” Travelers Indem. Co., 340 F.3d at 1121

(citing cases). Appellate review of the issues raised by Ms. Burnett is not
-9-

possible without reference to the absent materials. Milligan-Hitt, 523 F.3d at

1232. As we have warned parties many times, we regularly decline to hear claims

predicated upon record evidence not included in the appendix. We likewise

decline to do so here and, therefore, are constrained to affirm. See Scott v. Hern,

216 F.3d 897, 912 (10th Cir. 2000).

CONCLUSION

Ms. Burnett’s failure to include in the appendix documents that control the

resolution of the issues on appeal—the evidence she presented to the district court

in an effort to demonstrate genuine issues of material fact—deprives her of the

right to challenge the judgment of the district court. Because the record before us

is insufficient to permit us to appropriately review the district court’s summary

judgment decisions, we summarily AFFIRM its grant of summary judgment on

the FMLA and ERISA claims.