* This order and judgment is not binding precedent, e xcept under the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

### JAN 30 1998 

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

VIOLET LEE,

Plaintiff-Appellant,

v. WILLIAM PERRY, SECRETARY, DEPARTMENT OF DEFENSE,

Defendant-Appellee. No. 96-6392 (D.C. No. 94-CV-2079) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff was hired as a part-time checker at the c ommissary at Fort Sill in 1987. In 1993, a full-time position opened for whi ch plaintiff was not selected. Instead, the job was given to a white woman, younge r than plaintiff. Plaintiff filed a complaint alleging that defendant discrimin ated against her on the basis of age, race, and gender. The district court granted summary judgment in favor of defendant, and we affirm. In granting summary judgment, the district court di d not consider plaintiff’s untimely response to defendant’s summary judgment m otion. After defendant filed its summary judgment motion, plaintiff filed a motion for extension of time in which to respond. The district court granted pl aintiff’s first motion for extension of time. Plaintiff’s application for a s econd extension was denied. Seven days after the response was due, plaintiff fi led her response to defendant’s summary judgment motion, and the following day she filed a third motion for extension of time. The district court denied the t hird motion for extension of time and ordered that plaintiff’s response be stricken. In its order striking the response, the district court noted that one of plai ntiff’s attorney’s excuses for needing more time was another summary judgment resp onse due in another case before the district court. The court recognized th at the case counsel referred to was before another judge and that counsel had also requested an extension of time1 Although neither party addresses this in their brie f, it appears that

plaintiff’s first motion for extension of time was made pursuant to Fed. R. Civ. P. 6(b)(1) and the second one was pursuant to 6(b)(2). In fact, neither plaintiff nor defendant even mentions the district court’s refusa l to consider plaintiff’s summary judgment response as a consequence of the c ourt’s refusal to extend the time in which it was filed. Insofar as defendant g oes out of its way to criticize plaintiff’s presentation of this appeal, we note th at, in addition to its failure to address the district court’s procedural handling of the summary judgment motion, defendant’s brief on appeal is incomplete. Althoug h it contains consecutively numbered pages, the last sentence on page 4 is not completed on page 5. It appears that an entire section of the brief is miss ing. -3- in that case, citing this case as an excuse for nee ding more time. The district court admonished counsel in its order that it “does not appreciate counsel’s attempt to play one case off of the other, in the apparent belief that chambers do not communicate with one another.” Order Striking Pleadings at 2. The district court also chided counsel for making a retroactive motion for more time, after he had already filed the untimely response. We review the district court’s denial of plaintiff’ s motion for extension of time for an abuse of discretion. See Buchanan v. Sherrill , 51 F.3d 227, 228 (10th Cir. 1995). 1 Under the circumstances of this case, the distric t court did not abuse its discretion in denying further extensions of tim e and striking plaintiff’s untimely summary judgment response. We now turn to the merits of the summary judgment ruling. We review the district court’s grant of summary judgment de novo to determine whether there is a genuine issue as to any material fact and whetherthe moving party is entitled to-4-

judgment as a matter of law. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). We view the evidence in the light most favo rable to the nonmoving party, even when the evidence is produced by the movant. See Buchanan , 51 F.3d at 229. We must also follow the burden-shifting regim e set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), which dictates that the plai ntiff has the burden of establishing a prima facie case of di scrimination in her complaint, id. at 802. The burden then shifts to defendant to articulate a legitimate, nondiscriminatory reason for the action, after whic h the plaintiff must show that the defendant’s proffered reason is a pretext. See id. at 802, 804. Plaintiff’s complaint establishes a prima facie cas e of discrimination. Answering plaintiff’s allegations of discriminationin its summary judgment motion, defendant presents legitimate, nondiscrimin atory reasons why plaintiff was not selected for the full-time position. The r ecord shows that plaintiff had been the object of several customer complaints and the subject of various documented disciplinary actions throughout her tenu re. In contrast, the employee selected for the full-time position had no customercomplaints or disciplinary incidents. In addition, even though she had not wo rked for defendant as long as plaintiff, the selected employee had more years of experience, considering her previous employment. Defendant met its burden of articulating legitimate, nondiscriminatory reasons for not selecting plainti ff for the full-time position.2 We note that, in its summary judgment order, the di strict court stated that it

had reviewed plaintiff’s untimely response and, eve n if it had considered the response, plaintiff did not meet her burden. We, t oo, have reviewed the untimely response and we agree with the district court that, even considering the untimely response, plaintiff would not have survived summaryjudgment. -5- Plaintiff failed to show that defendant’s stated re asons were pretext. As stated above, the district court’s action in striki ng plaintiff’s untimely response to the summary judgment motion was within its discreti on, and the record contains no evidence of pretext. 2We, therefore, affirm the district court’s grant of summary judgment in favor of defendant. Finally, to the extent that plaintiff argues on app eal that the district court judge erred in failing to sua sponte recuse himself from this case, we disagree. Plaintiff did not request that the district court j udge recuse himself, and she has presented no facts that would suggest the judge sho uld have acted sua sponte. The judgment is AFFIRMED.

ENTERED FOR THE COURT PER CURIAM