* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; 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 

### MAR 1 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SHERRONE BURLESON,

Plaintiff-Appellant,

v. SPRINT PCS GROUP,

Defendant-Appellee. No. 04-6082 (D.C. No. 02-CV-1000) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Sherrone Burleson, proceeding pro se, app eals from five orders entered in her lawsuit against her employer. She s ued under Title VII alleging that her employer, defendant Sprint PCS Group (Spri nt), subjected her to a sexually hostile work environment, engaged in quid pro quo sexual harassment, and retaliated against her for seeking to vindicate her rights. The district court entered summary judgment in Sprint’s favor on the quid pro quo sexual harassment and retaliation claims. Following a tri al on the remaining claim, a jury returned a verdict for Sprint. Ms. Burleson’s motion for a new trial was denied, and she appeals. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Ms. Burleson challenges the following orders issuedby the district court: (1) the order directing her to appear for a neurops ychological examination by Sprint’s expert witness, (2) the order denying her motion to extend the witness list deadline, (3) the order denying her motion to recus e, (4) the order denying her motion to dismiss Sprint’s second motion in limine, and (5) the order denying her motion for a new trial. Ms. Burleson’s motion to a mend her notice of appeal to narrow the issues presented for appeal is granted.
BACKGROUND During her employment with Sprint, Ms. Burleson complained of sexual harassment by fellow employees, including Ron Witch er. She asserted that Sprint-3-

took no action as a result of her complaints, excep t to initiate disciplinary actions against her. She further alleged that Sprint permi tted Mr. Witcher to escalate his harassment of her until her work environment became hostile. Consequently, she filed suit against Sprint, claiming, among other th ings, that the actions of Sprint personnel impaired her mental, emotional and medica l condition. As noted above, Ms. Burleson appeals five specific orders. She does not appeal the order granting summary judgment to Sprint, nor does she challenge the sufficiency of the evidence to support the jury ver dict. Accordingly, we limit our consideration to the issues identified by Ms. Burle son. ANALYSIS Neuropsychological Evaluation Ms. Burleson asserts that the district court erred in requiring her to submit to a neuropsychological evaluation by Sprint’s expe rt witness. “When the mental or physical condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified exa miner . . . .” Fed. R. Civ. P. 35(a). Ms. Burleson alleged that Sprint caused hermental, emotional and medical condition to be impaired. Therefore, Sprint reques ted that she be examined by a medical professional. We review a district court’s ruling on a Rule 35 motion for an abuse of discretion. Green v. Branson , 108 F.3d 1296, 1304 (10th Cir. 1997).-4-

Ms. Burleson claims the district court erred in ord ering her to appear for the examination despite the lack of a formal motion seeking such an order. In addition, she would have preferred a neutral profes sional to the one selected by Sprint. Sprint filed a motion to extend the expert -witness deadline due to Ms. Burleson’s refusal to be examined. After Ms. B urleson stated in open court that she intended to continue to refuse, the distri ct court construed the motion to extend the deadline as a request to require Ms. Bur leson to be examined, and directed Ms. Burleson to submit to an examination. Ms. Burleson has provided no reason that would have permitted her to avoid be ing examined by Sprint’s medical professional. Consequently, the district c ourt did not abuse its discretion in ordering her to submit to the examination. Witness List Deadline Ms. Burleson next challenges the orders denying herrepeated requests to extend the deadline to file witness lists to permither to list three additional witnesses. The district court denied Ms. Burleson’ s motions because the proffered testimony was only tangentially related t o the claims set for trial, Sprint would not have adequate time to investigate the wit nesses’ allegations within the existing deadlines, and extending the deadlines and trial date were unwarranted. We review discovery rulings for an abuse of discretion. See Cole v. Ruidoso Mun. Sch. , 43 F.3d 1373, 1386 (10th Cir. 1994). “We will no t reverse a-5-

decision to limit discovery absent a clear showing that the denial of discovery resulted in actual and substantial prejudice to the complaining litigant.” Davoll v. Webb , 194 F.3d 1116, 1139 (10th Cir. 1999) (quotation o mitted). Ms. Burleson has not explained how she was prejudiced by the dis trict court’s ruling, except to assert generally that the witnesses would have test ified in support of her claims. This falls short of the showing necessary to demons trate an abuse of discretion.
Motion to Recuse Ms. Burleson claims that the district court should have recused itself under 28 U.S.C. §§ 144 and 455. She contends that the co urt was required to appoint a different judge to rule on her motion and that the court was biased against her, as evidenced by adverse rulings. We review the decisi on not to recuse under either § 144 or § 455 for an abuse of discretion. United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992). To be entitled to recusal under § 144, the moving p arty must submit an affidavit showing, among other things, bias and prejudice. Glass v. Pfeffer , 849 F.2d 1261, 1267 (10th Cir. 1988). “The affidav it must state with required particularity the identifying facts of time, place, persons, occasion, and circumstances.” Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987). The facts alleged in the § 144 affidavit must be accept ed as true, but they are construed strictly against the moving party. Glass , 849 F.2d at 1267. “The-6-

affidavit is insufficient if it merely states concl usions, rumors, beliefs and opinions. . . .” Id. Under § 455, “the factual allegations need not be taken as true, and the test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Id. at 1268 (quotation omitted). Ms. Burleson cites no authority, and we know of non e, requiring a different judge to act on a recusal motion. Her affidavit in support of her recusal motion alleged that she was prejudiced by the actions of h er former attorney and Sprint’s attorneys, that the trial judge colluded with Sprin t’s counsel and was swayed by the importance of Sprint and its attorneys in the l ocal community, and that the judge’s rulings against her showed bias and prejudi ce. The actions of others do not provide grounds for recusal. Moreover, adverse rulings cannot alone provide grounds for disqualification, Mitchell v. Maynard , 80 F.3d 1433, 1449 (10th Cir. 1996), and Ms. Burleson has not shown that the district court’s rulings were unreasonable or incorrect, let alone that they demo nstrated bias. Lastly, Ms. Burleson’s charges of collusion and outside pre ssure “lacked particularity” and were based on “conclusions, rumors and innuendo.” Glass , 849 F.2d at 1267- 68. Accordingly, we hold that the district court d id not abuse its discretion in denying the motion to recuse, under either § 144 or§ 455.-7- Motion in Limine Ms. Burleson next appeals the district court’s ruli ng on her request to introduce evidence of other Sprint employees’ sexua l harassment complaints against the company. In addition, she asserts erro r in the district court’s ruling that affidavits were not admissible at trial, but t he affiant would have to testify in person. Sprint filed a motion in limine to exclude this evidence on the ground that Ms. Burleson had not shown that the other empl oyees’ situations were similar to hers. The district court rejected Ms. Burleson’ s opposition to Sprint’s motion in limine, a ruling we review for an abuse of discretion. See Echo Acceptance Corp. v. Household Retail Servs., Inc. , 267 F.3d 1068, 1087 (10th Cir. 2001) (“Evidentiary rulings are reviewed for abuse of dis cretion.”). Ms. Burleson did not demonstrate that the circumsta nces involving the other employees were similar to hers or otherwise t ied to hers, which would permit the inference that their experiences were relevant to her claims. Cf. Curtis v. Okla. City Pub. Sch. Bd. of Educ. , 147 F.3d 1200, 1217-18 (10th Cir. 1998) (finding no abuse of discretion in excluding testim ony of other employees in retaliation case due to differences in plaintiffs’ and other employee’s situations). We find no abuse of discretion in excluding this ev idence. Furthermore, the district court did not abuse its discretion in requ iring Ms. Burleson’s witnesses to1 Ms. Burleson also claims she was improperly prevent ed from introducing

evidence that her former manager refused to permit her to listen to monitored calls and have copies of her monitored reports. Sh e maintains that this evidence was relevant to her claim of a hostile work environ ment, and that the district court’s requirement that evidence be probative of a gender-based hostile work environment was error. The district court was corr ect. Title VII is not a “general civility code[;] . . . it is directed only at discrimination because of sex.” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80 (1998) (quotation omitted). -8- testify in person, rather than by affidavit. Fed. R. Civ. P. 43(a); Fed. R. Evid. 801(c). Motion for New Trial Finally, Ms. Burleson claims she is entitled to a n ew trial for the following reasons: exclusion of affidavits by other Sprint e mployees alleging sexual harassment; the trial court’s bias; newly discovere d evidence; and fraud, misrepresentation and misconduct by Sprint and its attorneys. She invoked both Rules 59 and 60 of the Federal Rules of Civil Proce dure in her post judgment motion. “Denial of a motion for a new trial is wit hin the discretion of the trial court and will not be disturbed on appeal in the ab sence of manifest abuse of discretion.” Joseph v. Terminix Int’l Co. , 17 F.3d 1282, 1285 (10th Cir. 1994). We have already discussed and rejected Ms. Burleson ’s claims pertaining to exclusion of other Sprint employees’ affidavits and the district court’s bias. These claims do not entitle her to a new trial. 1-9-

Ms. Burleson asserts that documents she requested d uring discovery but did not receive qualify as newly discovered evidence en titling her to a new trial. The first set of documents (McKinney notes) came to lig ht during trial when Sprint attempted to introduce them into evidence. Ms. Bur leson’s objection was sustained and the McKinney notes were not admitted. Ms. Burleson claims a second set of documents showed that her supervisor had been informed of her sexual harassment complaints before he disciplined her (Archer statement). Ms. Burleson also became aware of the Archer statement during trial. The evidence Ms. Burleson asserts was newly discove red was clearly available to her at trial. Therefore, it does not qualify as newly discovered evidence under either Rule 59 or 60. Comm. for First Amendment v. Campbell , 962 F.2d 1517, 1523 (10th Cir. 1992) (Rule 59); Graham ex rel. Graham v. Wyeth Labs. , 906 F.2d 1399, 1416 (10th Cir. 1990) (Rule 60). Moreover, Ms. Burleson has not demonstrated how thi s evidence warrants relief from judgment. See Computerized Thermal Imaging, Inc. v. Bloomberg,
L.P. , 312 F.3d 1292, 1300 (10th Cir. 2002). The distri ct court sustained Ms. Burleson’s objection to the introduction of the McKinney notes. The Archer statement was relevant to her retaliation claim, wh ich was disposed of on summary judgment, a ruling she does not challenge. To the extent she argues generally that if she had been aware of the evidenc e sooner she would have-10-

prevailed at trial, this argument does not make the requisite showing “that a new trial, with the newly discovered evidence would pro bably produce a different result.” Graham , 906 F.2d at 1416. Lastly, we consider Ms. Burleson’s claims of fraud, misrepresentation, and misconduct by Sprint’s attorneys. To be entitled t o relief on these grounds, Ms. Burleson must show that “the challenged behavio r . . . substantially . . . interfered with [her] ability fully and fairly to p repare for and proceed at trial.” Cummings v. Gen. Motors Corp. , 365 F.3d 944, 955 (10th Cir. 2004). Ms. Burleson charges that Sprint’s attorneys (1) wi thheld the McKinney notes and Archer statement discussed above, (2) dep osed her for more than seven hours without informing her that she could object, (3) insisted on cross-examining a witness during a deposition and canceled other de positions, (4) hired Ms. Burleson’s then-attorney for an unrelated matte r which prevented him from zealously representing her, and (5) prepared Sprintemployees to testify at trial. There is no support in the record for the attorney- stealing claim. As for Ms. Burleson’s remaining charges, we conclude that they do not demonstrate misconduct. Consequently, we hold that the distric t court did not abuse its discretion in denying Ms. Burleson’s motion for a n ew trial.-11-

Ms. Burleson’s motion to amend her notice of appeal is GRANTED. All other pending motions are DENIED. The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge