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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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

January 9, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EULENE NAIFEH,

Plaintiff-Appellant,

v.

IDEAL HOMES OF NORMAN, L.P.,

Defendant-Appellee.

No. 07-6085

(D.C. No. 06-CV-00441-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and ANDERSON, Circuit Judges.

Eulene Naifeh worked as a New Home Consultant for Ideal Homes of

Norman, L.P., until her employment was terminated in April 2005. Ms. Naifeh

brought an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2000e-17; the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621-634; the Equal Pay Act, 29 U.S.C. § 206(d); and Oklahoma law. The
-2-

district court granted summary judgment to Ideal on all claims, and Ms. Naifeh

appealed. We have jurisdiction under 28 U.S.C. § 1291. Having reviewed the

district court’s grant of summary judgment de novo, see Hackworth v.

Progressive Cas. Ins. Co., 468 F.3d 722, 725 (10th Cir. 2006), cert. denied,

127 S. Ct. 2883 (2007), we AFFIRM.

Ms. Naifeh contends that the district court erred in granting Ideal’s

summary judgment motion without first ruling on her motion to compel, which

had been pending for over six weeks at the time the district court ruled on the

summary judgment motion. She argues that, had she known that the district court

would not compel production of the requested documents, she could have sought

a continuance under Federal Rule of Civil Procedure 56(f).

Summary judgment is inappropriate when a party has not had adequate

opportunity to pursue discovery. See Been v. O.K. Indus., Inc., 495 F.3d 1217,

1235 (10th Cir. 2007). The Federal Rules of Civil Procedure, however, have

anticipated such a situation. Rule 56(f) allows a court to refuse summary

judgment or grant a continuance if a party shows, by affidavit, why she cannot

present evidence in opposition to a motion for summary judgment. The district

court’s failure to rule on the motion to compel did not prevent Ms. Naifeh from

seeking Rule 56(f) relief. In responding to Ideal’s summary judgment motion, she

did not alert the district court to her purported need for the evidence she sought to

compel. Her response brief did not allude to the motion to compel or otherwise
-3-

invoke the protection of Rule 56(f), and she did not file a Rule 56(f) affidavit

explaining her need for further evidence. Instead, she responded on the merits. 

Consequently, she cannot now claim that she did not have sufficient opportunity

to gather evidence. “Where a party opposing summary judgment and seeking a

continuance pending completion of discovery fails to take advantage of the shelter

provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in

granting summary judgment if it is otherwise appropriate.” Pasternak v. Lear

Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986). “[A] party

ordinarily may not attempt to meet a summary judgment challenge head-on but

fall back on Rule 56(f) if its first effort is unsuccessful.” Been, 495 F.3d at 1235

(quotation omitted); see also Hackworth, 468 F.3d at 732 (“A nonmoving party

wishing to invoke the protections of Rule 56(f) must attempt to do so by

submitting an affidavit in direct response to a motion for summary judgment, not

following the district court’s disposition of that motion.”). 

Ms. Naifeh also argues that the district court erred in denying the motion to

compel and in granting summary judgment to Ideal on all of her claims. We

disagree, and we affirm the district court’s decisions for substantially the reasons

expressed in the district court’s memorandum opinion and order dated March 8,

2007.
-4-

The judgment of the district court is AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge