UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

TONI R. PALMER, 

 Plaintiff - Appellant,

v.

KAISER FOUNDATION HOSPITALS 

TECHNOLOGY RISK OFFICE, 

 Defendant - Appellee.

No. 18-1028

(D.C. No. 1:16-CV-02376-WJM-KMT)

(D. Colo.)

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ORDER AND JUDGMENT*

_________________________________

Before EID, KELLY, and O’BRIEN, Circuit Judges.

_________________________________

Toni R. Palmer appeals from the district court’s grant of summary judgment to 

her former employer, Kaiser Foundation Hospitals, in her employment lawsuit. 

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

BACKGROUND

Palmer began working as a Senior Case Manager in the Technology Risk 

Office of Kaiser Foundation Hospitals (Kaiser) on March 31, 2015. She was the only 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 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.

FILED

United States Court of Appeals

Tenth Circuit

October 18, 2018

Elisabeth A. Shumaker

Clerk of Court
2

African-American employee in her department. Starting in May, she was assigned as 

a support person for Senior Director Natalie Henderson, who had participated in the 

hiring process and approved of hiring Palmer. But Henderson was dissatisfied with 

Palmer’s performance, and Palmer had difficulty with Henderson’s management 

style. Palmer accused Henderson of bullying her, intimidating her, and being critical 

of her. She experienced physical and mental ailments due to her work situation, and 

she unsuccessfully sought transfers to other departments. By the end of 2015, Palmer 

had complained about Henderson numerous times. 

On January 11, 2016, Henderson presented Palmer with a thirty-day 

Performance Improvement Plan (PIP). In February Henderson extended the PIP for 

another thirty days. Palmer failed to successfully complete the PIP. 

The PIP ended on March 11, 2016. The next day, Henderson decided to 

terminate Palmer’s employment. She planned to tell Palmer at a meeting scheduled 

for March 24. But after receiving an allegedly hostile communication from another 

team member on March 22, Palmer called in sick on March 23, 24, and 25. She then 

submitted doctor’s notes to support her request for medical leave through the first 

part of April. Henderson e-mailed Palmer about the unsuccessful conclusion of the 

PIP and rescheduled their meeting for Palmer’s return.

On April 6, Palmer’s therapist submitted a certification in support of a request 

for leave under the Family and Medical Leave Act of 1993 (FMLA). The request 

was for two to three hours, one day per week, to attend therapy. 
3

Palmer returned to work on April 11, and Kaiser terminated her employment 

effective that day. On April 12, the same day Palmer’s physician signed a 

certification she would need FMLA leave one to two days a month, Kaiser approved 

her FMLA request. It retroactively applied FMLA leave to adjust Palmer’s 

paid-time-off payout amount.

Palmer sued Kaiser, alleging race discrimination, retaliation, and hostile work 

environment under Title VII of the Civil Rights Act of 1964; interference and 

retaliation under the FMLA; and intentional infliction of emotional distress under the 

Federal Tort Claims Act (FTCA). Palmer later moved to amend her complaint to add 

nine new defendants and additional factual support for her claims. The district court 

denied leave to amend because Palmer’s proposed new claims were subject to 

dismissal and thus would be futile. The district court then granted Kaiser’s motion 

for summary judgment on all claims. Palmer now appeals.

DISCUSSION

Because Palmer appears pro se, we construe her filings liberally. See Requena 

v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018). But “this court has repeatedly 

insisted that pro se parties follow the same rules of procedure that govern other 

litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005) (brackets and internal quotation marks omitted). The court affords a solicitous 

reading to pro se briefing, but it “cannot take on the responsibility of serving as the 

litigant’s attorney in constructing arguments and searching the record.” Id. (brackets 

and internal quotation marks omitted). For reasons discussed below, ignoring the 
4

shortcomings of Palmer’s briefing would stretch solicitude beyond elastic limits. We 

cannot impartially decide an appeal if we assume the role of an advocate. 

Palmer first complains the district court denied leave to amend her complaint. 

Generally we review a denial of amendment for abuse of discretion, but because the 

district court’s decision was based on a determination of futility, our review is 

de novo. Jones v. Norton, 809 F.3d 564, 579 (10th Cir. 2015).

Palmer sought to bring her Title VII, FMLA, and FTCA claims against nine 

additional defendants—six individuals and three Kaiser-related entities. The district 

court concluded Palmer had failed to adequately object to the magistrate judge’s 

recommendation regarding some of the claims. It further concluded the remaining

claims failed to state a cognizable claim. For example, the Title VII claims were 

futile because none of the new defendants were Palmer’s employer, and the FTCA 

claims were futile because none of the new defendants were subject to the FTCA. 

Under this court’s firm waiver rule, a failure to object to a magistrate judge’s 

findings and recommendations “waives appellate review of both factual and legal 

questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (internal 

quotation marks omitted). Palmer does not challenge the determination she 

inadequately objected to parts of the recommendation and does not assert any 

exception to the firm waiver rule should apply. Thus, we do not review the denial of 

amendment as to claims to which Palmer did not object. See Requena, 893 F.3d at 

1205 (stating this court addresses only those claims challenged on appeal and does 

not “conjure facts [a pro se plaintiff] might conceivably raise in support of his 
5

claims”). And having reviewed the remaining proposed claims, we see no error in 

the district court’s conclusion they were legally futile. Particularly, as the district 

court stated, the new entities were not Palmer’s employer, and in this circuit a 

plaintiff cannot proceed with Title VII claims against an individual, see Haynes v. 

Williams, 88 F.3d 898, 901 (10th Cir. 1996). 

Palmer next complains about the district court’s denial of her motion for a 

settlement conference. A decision to order parties into settlement proceedings is a 

matter within the district court’s discretion. United States v. U.S. Dist. Court for 

N. Mariana Islands, 694 F.3d 1051, 1059 (9th Cir. 2012). But the district court 

understood Kaiser was not interested in settling, and under those circumstances, it 

was not an abuse of discretion for it to decline to order a settlement conference. That 

is true even assuming Kaiser had settled in cases brought against it by other 

plaintiffs, as Palmer alleges. 

Palmer’s remaining arguments attack the grant of summary judgment to 

Kaiser. She states she “is gravely concerned with authenticity of most all Exhibits 

attached to” the motion for summary judgment,” Opening Br. at 13, and “is 

requesting further review of all Exhibits provided by Defendant and rebuttals 

provided,” id. at 14. However, we examine only the one exhibit she specifically 

identifies (which also appears to be the only exhibit she objected to in the district 

court)—a job description including a bachelor’s degree requirement, which she 

alleges was not a requirement when she was hired. See Requena, 893 F.3d at 1205. 

Whether Palmer possessed a bachelor’s degree had no bearing on her performance or 
6

Henderson’s perception thereof, however, so the identified differences in the job 

descriptions do not create a genuine issue of material fact relevant to the issues 

before the court. 

Palmer also states there exist disputed facts. But she does not specifically 

identify any material, disputed facts that would undermine the grant of summary 

judgment to Kaiser. While she alleges Kaiser submitted her deposition as an exhibit 

before the conclusion of discovery and without her line-item changes, she does not 

identify how any such changes affected the deposition excerpts Kaiser submitted or 

otherwise cast doubt on the district court’s judgment. And while she states her 

access to Kaiser’s discovery documents was delayed because of an inoperable link, 

she does not explain how any delay hindered her ability to respond to the motion for 

summary judgment. See Fed. R. Civ. P. 56(d) (requiring nonmovant to “show[] by 

affidavit or declaration that, for specified reasons, it cannot present facts essential to 

justify its opposition”). 

Palmer further complains Kaiser breached numerous internal policies and 

procedures. “The mere fact that an employer failed to follow its own internal 

procedures does not necessarily suggest that the substantive reasons given by the 

employer for its employment decision were pretextual.” Berry v. T–Mobile USA, 

Inc., 490 F.3d 1211, 1222 (10th Cir. 2007) (ellipsis and internal quotation marks 

omitted). In addition, in these sections of her brief, Palmer simply identifies 

evidence she submitted, without making any effort to challenge the district court’s 

rationales regarding such evidence. 
7

Having reviewed the briefs and the record on appeal, for substantially the 

reasons thoroughly discussed by the district court we conclude the evidence does not 

create a genuine issue of material fact to be submitted to a jury. As the district court 

cogently stated with regard to the Title VII claims: 

Plaintiff’s description of the manner of Ms. Henderson’s 

communications depicts an unnecessarily unpleasant work environment 

and perhaps even abusive management. If the issue were merely 

whether Plaintiff was poorly treated, then Plaintiff would, at a 

minimum, have raised a triable question of fact on that issue. But 

absent evidence that because of her race Plaintiff was treated differently 

than her co-workers, or was subjected to a hostile work environment, 

evidence of general mistreatment of an employee does not present an 

actionable claim under Title VII.

R., Vol. 5 at 160 (record citations omitted). Likewise, the record does not support

Palmer’s claims Kaiser acted in violation of the FMLA.

1

Palmer’s request to admit Document 75 into the appellate record is denied as 

unnecessary, because it already is part of the record on appeal transmitted by the 

district court. The district court’s judgment is affirmed.

Entered for the Court

Terrence L. O’Brien

Circuit Judge

 1 During the litigation, Palmer acknowledged Kaiser was not a proper 

defendant under the FTCA. The magistrate judge’s recommendation found Palmer 

had abandoned any claim regarding infliction of emotional distress by failing to 

argue it in her summary-judgment briefing, and also the evidence was insufficient to 

establish a common-law tort claim. The district court adopted the recommendation. 

Because Palmer does not challenge these determinations on appeal, we do not 

address them. See Requena, 893 F.3d at 1205.