* This order and judgment is not binding precedent, e xcept under the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

### JUL 21 2003 

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

DOREEN JANICE CURRY,

Plaintiff-Appellant,

v. MAZZIO’S CORPORATION,

Defendant-Appellee. No. 02-5199 (D.C. No. 02-CV-33-H(M)) (N.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and McCONNELL , 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. Plaintiff Doreen Janice Curry appeals from the entry of summary judgment for defendant Mazzio’s Corporation in this action a lleging racial discrimination in-2-

employment. The following passage from Jones v. Denver Post Corp. , 203 F.3d 748 (10 th Cir. 2000), summarizes the principles governing our consideration of this appeal: We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by t he district court. Summary judgment is appropriate if the pleadings, d epositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We view the evidence and draw any i nferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Id. at 751 (citations and quotations omitted). We con sider the substantive issues argued by Ms. Curry in light of these principles an d conclude that summary judgment was properly granted for the reasons expla ined below. We also address several procedural objections raised by Ms. Curry and conclude that none of these involves an abuse of the district court’s discretio n. Accordingly, we affirm. While working for a temporary employment agency, Ms . Curry was placed with Mazzio’s on a “temp-to-perm” basis. The situation soured almost immediately. Ms. Curry’s list of complaints includ ed such office minutia as the placement of a calculator and telephone, but her pr imary grievances involved company smoking policies, strict time/attendance re quirements insisted upon by her supervisor, and unspecified “extra work” impose d on her. Within a month, complaints she voiced to her employment agency led to the termination of her-3-

assignment with Mazzio’s. She later filed employmen t discrimination actions against her employment agency and Mazzio’s, both of which ended in summary judgment being entered for the defendants. This co urt recently affirmed summary judgment for the agency. See Curry v. Robert Half Int’l, Inc. , No. 02-5198, 2003 WL 21437208 (10 th Cir. June 23, 2003). The district court granted summary judgment for Maz zio’s “[f]irst and foremost [because] there is a dearth of evidence of racial animus.” R., doc. 53 at 1. We agree with this assessment of the record. Mazzio’s has articulated and substantiated legitimate reasons for application of its anti-smoking policy to Ms. Curry (like other permanent/potentially permane nt employees brought in after the policy went into effect, she was not allowed to smoke on company grounds while longstanding employees could still do so) andthe work attendance/documentation requirements imposed on Ms . Curry by her supervisor (attributed to both the supervisor’s absences for training and Ms. Curry’s temp-to-perm status). As for office equipment, Maz zio’s explained that Ms. Curry was hired during a period of transition and used a computer on a common-area table that happened to have a phone and calculator; when a new employee was placed with her, the calculator (which the computer made redundant) was given to the new employee and the ph one was simply moved a few feet, remaining available to both. As for her amorphous complaint about-4-

extra work, Mazzio’s responded that her supervisor gave her a stack of reading material and asked her to help out wherever she was needed when the supervisor was scheduled for training and would be unavailable to direct her in the event she had nothing to do. Mazzio’s emphasized, however, t hat she was never required to stay overtime, to work hours in excess of others, o r to do tasks her white co-workers were not also asked to do. Ms. Curry responded by reasserting her complaints and her belief that racial bias was the motivation behind the events in questi on. That is not a proper case for pretext. Once an employer provides a legitimat e basis for its conduct, the onus is on the employee to offer evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (emphasis added and quotations omitt ed). Without such evidence, the case came down to Mazzio’s substantiated non-discriminatory explanation against Ms. Curry’s bald accusation of racism. This court has repeatedly held that a “[p]laintiff’s mere conjectu re that [her] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Jones , 203 F.3d at 754 (quotations omitted).-5-

Ms. Curry challenges the affidavits submitted by Ma zzio’s in support of summary judgment, arguing that the affiants lacked personal knowledge of the events Ms. Curry was complaining about. With respe ct to the affidavit submitted by Ms. Curry’s own supervisor, this argument is fri volous. As for the rest, her objection simply misses the point of the affidavits . They establish, explain, and evidence the enforcement of policies cited by Mazzi o’s for its conduct in this case. Regardless of their ignorance of Ms. Curry’s circumstances, the affiants demonstrate personal knowledge of and experience wi th the policies involved. Their affidavits are thus both competent and releva nt. Ms. Curry contends that the district court wrongly dismissed her retaliation claim during the proceedings on her initial motion for summary judgment. She insists the court misunderstood her claim when reje cting it on the basis that, even if her complaints about Mazzio’s had something to d o with the termination of her placement there, that action was taken by her emplo yment agency, not Mazzio’s. She maintains that the focus of the retaliation cla im was, rather, on her treatment by her supervisor, which she argues was the retaliatory consequence of (unspecified) problems the supervisor had had with other minority employees.
See Aplt. Br. at 15. By characterizing her claim in t his fashion, however, she highlights a patent legal deficiency in her positio n. The first prerequisite of any retaliation claim is the plaintiff-employee’s protected opposition to unlawful-6-

discrimination , prompting the employer’s retaliatory conduct. See, e.g. , Hysten v. Burlington N. & Santa Fe Ry. Co. , 296 F.3d 1177, 1183 (10 th Cir. 2002); Penry v. Fed. Home Loan Bank of Topeka , 155 F.3d 1257, 1263 (10 th Cir. 1998). Ms. Curry does not allege or even suggest that she engaged in any protected activity in connection with her supervisor’s treatm ent of the other minority employees to whom she vaguely alludes here. We turn now to Ms. Curry’s various procedural objec tions. First of all, she contends the district court wrongly denied her requ est to appoint counsel. “The appointment of counsel in a civil case is left to t he sound discretion of the district
court.” Shabazz v. Askins , 14 F.3d 533, 535 (10 th Cir. 1994). The district court expressly considered the relevant factors summarized in Rucks v. Boergermann , 57 F.3d 978, 979 (10 th Cir. 1995), see R., doc. 14 at 1-2, and we cannot say its resultant decision was an abuse of discretion. Ind eed, the case turned on facts which were relatively uncomplicated and largely wit hin Ms. Curry’s personal knowledge. Ms. Curry argues that the district court should hav e granted her motion for a transcript of the summary judgment proceedings atgovernment expense. For reasons which are not clear, she bases her assertedentitlement to a transcript on Section 1102 of the Civil Practice Law and Rules fo r the State of New York, which has no application here. A request for a fre e transcript in a civil federal-7-

case is governed by 28 U.S.C. § 753(f), and the dis trict court’s ruling on such a request is reviewed solely for abuse of discretion, see Carlile v. S. Routt Sch.
Dist. RE-3J , 739 F.2d 1496, 1501 (10 th Cir. 1984). Apart from mistakenly relying on the state rule for an asserted entitleme nt, Ms. Curry advances no substantive argument to challenge the district court’s ruling or to suggest how any particular matter that surfaced only at the hearing would be material to the disposition of this appeal. In light of these omis sions and the lack of merit in the issues we have already discussed, we cannot say the district court abused its discretion in denying her a free transcript under § 753(f). Ms. Curry also assigns as error the denial of her “ Motion to Terminate D[e]position,” which raised a number of procedural objections to the conduct of her deposition. Pursuant to authority granted in 2 8 U.S.C. § 636(b)(1)(A), the magistrate judge denied this non-dispositive pretrial motion. S ee R., doc. 45. The district court docket reveals that Ms. Curry di d not move for reconsideration of the magistrate judge’s ruling before the distric t court. “‘[A]ppellate courts are without power to hear appeals directly from orders of federal magistrates,”’ and, thus, in light of Ms. Curry’s failure to seek distr ict court review of the magistrate judge’s order, “we may not consider the issues deci ded in that order on appeal.” Pippinger v. Rubin , 129 F.3d 519, 533, 534 (10 th Cir. 1997) (quoting Niehaus v.
Kan. Bar Ass’n , 793 F.2d 1159, 1165 (10 th Cir. 1986)).-8-

Ms. Curry objects to the district court’s denial of her initial motion for summary judgment on the ground that it lacked evide ntiary materials to support her factual allegations. See R., doc. 22. The district court’s ruling was full y in accord with controlling summary judgment standards. See Reed v. Bennett , 312 F.3d 1190, 1194 (10 th Cir. 2002) (“[S]ummary judgment is appropriate under Rule 56(e) only when the moving party has met its i nitial burden of production under Rule 56(c). If the evidence produced in supp ort of the summary judgment motion does not meet this burden, summary judgment must be denied even if no opposing evidentiary matter is presented.” (quotati ons and emphasis omitted)). Finally, Ms. Curry appears to argue that summary ju dgment should not have been entered for Mazzio’s when she had not yet rece ived discovery responses to which she was entitled. She does not indicate the specific subject matter of the discovery, much less explain what material facts sh e expected to uncover. In any event, “if [Ms. Curry] felt [s]he could not oppose defendant[’s] motion[] for summary judgment without more information, [s]he sh ould have submitted an affidavit pursuant to Fed. R. Civ. P. 56(f) request ing a continuance until further discovery was had.” DiCesare v. Stuart , 12 F.3d 973, 979 (10 th Cir. 1993). Her pro se status did not exempt her from this obligati on and, thus, “we find no abuse of discretion in [the district court’s] deciding th e summary judgment motion before discovery was completed.” Id.-9-

The judgment of the district court is AFFIRMED.

Entered for the Court

Michael W. McConnell Circuit Judge