* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 23 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROGER FRICK,

Plaintiff - Appellant,

v. WELLS FARGO & COMPANY, a Delaware corporation,

Defendant - Appellee. No. 02-1535 (D.C. No. 02-WY-136-AJ) (D. Colorado)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance 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 sub mitted without oral argument.
I. Background On January 23, 2002, plaintiff Roger Frick filed th is action against his-2-

former employer, Wells Fargo & Company (“Wells Farg o”), alleging religious discrimination in violation of Title VII of the Civ il Rights Act of 1964, 42 U.S.C. § 2000e-5, et seq . The district court set the case for trial beginn ing on November 18, 2002. At the May 17, 2002, scheduling conferen ce, the district court entered a scheduling order setting July 10, 2002, as the di scovery cutoff and August 1, 2002, as the deadline for filing dispositive motion s. The court scheduled a final pretrial conference for September 19, 2002. Wells Fargo moved for summary judgment on August 1, 2002. Mr. Frick failed to fi le any response to the summary judgment motion, and, on August 26, 2002, the district court entered an order to show cause, requiring a response from Mr. Frick by September 6, 2002. At this time, Mr. Frick was represented by counsel. On September 12, 2002, however, his counsel filed a motion seeking ( 1) to withdraw and (2) a continuance of trial. On September 17, 2002, Mr. F rick’s counsel filed a response to the order to show cause reiterating his intent t o withdraw and again requesting that Mr. Frick be given reasonable time to locate c ounsel. On September 19, 2002, the magistrate judge held a hearing on the mo tion to withdraw in lieu of the scheduled pretrial conference. The same day, the m agistrate judge entered an order granting the motion to withdraw and continuin g various deadlines in the

case. On October 15, 2002, the district court entered an order clarifying the1 Because plaintiff represents himself on appeal, w e construe his pleadings

liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). -3- deadlines applicable to Mr. Frick. In this order, the district court noted that although it had been nearly a month after the heari ng on the motion to withdraw, Mr. Frick had neither obtained new counsel nor file d a response to defendant’s summary judgment motion. The district court entere d an order requiring that new counsel for plaintiff file an appearance and a resp onse to defendant’s summary judgment motion on or before November 1, 2002. In this order, the district court clearly indicated to Mr. Frick that failure to do s o would be deemed a confession of the pending motion for summary judgment. In a letter to the district court dated October 29, 2002, Mr. Frick requested additional time to obtain new counsel and to respon d to defendant’s summary judgment motion. On November 25, 2002, the district court granted defendant’s motion for summary judgment. Plaintiff brought thi s appeal, asserting that the district court erred in failing to grant his Octobe r 29, 2002, request for a continuance and in granting defendant’s motion for summary judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
II. Discussion 1
A. Denial of Continuance “The denial of a continuance is ‘reviewable only un der the standard of-4-

arbitrary abuse of discretion, upon a showing of manifest injustice.’” Morrison Knudson Corp. v. Fireman’s Fund Ins. Co. , 175 F.3d 1221, 1230 n.4 (10th Cir. 1999) (quoting United States v. Johnson , 909 F.2d 1440, 1441-42 (10th Cir.1990)). We will not reverse “unless we conclud e that the denial was arbitrary or unreasonable and materially prejudiced the appellant.” Id. (quoting United
States v. West , 828 F.2d 1468, 1469 (10th Cir. 1987)). When revi ewing the denial of a continuance, we consider the following factors : [1] the diligence of the party requesting the conti nuance; [2] the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; [3] the inconvenience to the opposing party, its wi tnesses, and the court resulting from the continuance; [and 4] the n eed asserted for the continuance and the harm that appellant might s uffer as a result of the district court’s denial of the continuance. United States v. Rivera , 900 F.2d 1462, 1475 (10th Cir. 1990) (quotation m arks omitted) (alterations in original). Facing this very deferential standard of review, Mr . Frick fails to address these factors; and, while Mr. Frick is now proceedi ng pro se, we will not make his argument for him. It is clear from the record thatMr. Frick was given ample opportunity to obtain new counsel, and he simply fa iled to do so. The district court did not, therefore, abuse its discretion in d enying his motion for a continuance. B. Summary Judgment-5-

“We review the grant or denial of a motion for summ ary judgment de novo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c).” Garcia v. Pueblo Country Club , 299 F.3d 1233, 1236 (10th Cir. 2002). Summary judgment is appropriate “if the ple adings, depositions, answers to interrogatories, and admissions on file, togethe r with the affidavits, if any, show that there is no genuine issue as to any mater ial fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c) ). We have previously held that before granting a moti on for summary judgment, even when the nonmoving party fails to fi le a response, the district court must consider whether Fed. R. Civ. P. 56 is satisfied. Reed v. Bennett , 312 F.3d 1190, 1195 (10th Cir. 2002). Under Rule 56(c) , the moving party always bears the initial responsibility of informin g the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of mater ial fact. Celotex Corp. , 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)). Thus, “[s]ummary judgment is not proper merely because [the nonmovin g party] failed to file a response.” Reed , 312 F.3d at 1194. The district court must examin e the moving party’s submission to “determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial an d the moving party is entitled to2“Although we liberally construe pro se pleadings, [Mr. Frick’s] pro se

status does not relieve him of the obligation to co mply with procedural rules.” Murray v. City of Tahlequah , 312 F.3d 1196, 1199 n.3 (10th Cir. 2002) (citing Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994)). -6- judgment as a matter of law.” Id. at 1195. In this case, “[b]y failing to file a response within the time specified, [Mr. Frick] wai ved the right to file a response and confesse[d] all facts asserted and properly supported in the motion.” Murray v. City of Tahlequah , 312 F.3d 1196, 1199 (10th Cir. 2002). 2It remained for the district court to determine whether defendant had c arried its Rule 56 burden. The district court specially found that it had, and aft er examining the parties’ submissions, the record, and the relevant law, we are convinced that the district
court was correct. Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, bec ause of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). In order to prevail on a Title VII religiousdiscrimination claim, the plaintiff must show that the defendant intentionally discriminated against him by offering proof “‘eithe r directly by persuading the court that a discriminatory reason more likely moti vated the employer or indirectly by showing that the employer’s profferedexplanation is unworthy of-7-

credence.’” EEOC v. WilTel, Inc. , 81 F.3d 1508, 1513 (10th Cir. 1996) (quoting Texas Department of Community Affairs v. Burdine , 450 U.S. 248, 256 (1981)). A plaintiff may also prove religious discriminationby demonstrating that her employer failed to reasonably accommodate her relig ious practices or beliefs or that her employer subjected her to disparate treatm ent because of her religious beliefs. Shapolia v Los Alamos National Laboratory , 992 F.2d 1033, 1037 (10th Cir. 1993). Mr. Frick’s claim fails under any of these theories of religious discrimination. After reviewing the record, we fin d no evidence that Mr. Frick’s termination was the result of his religious beliefs . Conversely, there is ample evidence in the record that Mr. Frick was terminate d for legitimate, nondiscriminatory reasons. Specifically, Mr. Frickwas advised that company policy prohibited the distribution of pamphlets in the workplace, yet he continued to distribute them. Other company employees compla ined about Mr. Frick’s conduct, reporting that he interacted with them in an offensive and unprofessional manner. Wells Fargo counseled Mr. Frick about this behavior, but he continued to lose his temper and refer to coworkers in a dero gatory manner. Because Mr. Frick failed to provide evidence to sup port his religious discrimination claim, and because Wells Fargo provi ded evidence of a legitimate nondiscriminatory reason for its actions, we affirmthe district court’s grant of-8-

summary judgment.
III. Conclusion Based on foregoing reasons, we AFFIRM the district court’s order denying Mr. Frick’s request for a continuance and granting defendant’s motion for summary judgment. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge