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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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

February 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EULA CHRISTINE SWIMMER,

Plaintiff-Appellant,

v.

KATHLEEN SEBELIUS, Secretary of

Department of Health and Human

Services,

Defendant-Appellee.

No. 09-7074

(D.C. No. 6:08-CV-00046-SPS)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior

Circuit Judge.

Plaintiff-appellant Eula Christine Swimmer, a Native-American woman

over the age of forty appearing pro se, appeals the district court’s grant of

summary judgment to defendant-appellee in regard to her Title VII and age

discrimination claims. 

Appellate Case: 09-7074 Document: 01018360618 Date Filed: 02/03/2010 Page: 1 
-2-

Ms. Swimmer worked as a supervisory medical technologist in the

laboratory at Hastings Indian Medical Center. In February 2007, she was

reassigned to a non-supervisory laboratory position and her old position was

given to a white male under the age of forty. Ms. Swimmer resigned. She filed

an initial Equal Employment Opportunity (EEO) complaint against

defendant-appellee on June 5, 2007, claiming her demotion was motivated by

race, gender, and age discrimination, as well as retaliation for previous

discrimination complaints she filed in the 1970’s and 1980’s. She subsequently

tried to amend her complaint to add a claim of constructive discharge, but her

request was refused and a new complaint was opened instead. Ms. Swimmer

received defendant-appellee’s final decision on her first complaint by certified

mail on October 10, 2007. She received the Secretary’s decision on her second

complaint on November 8, 2007. Both decisions noted Ms. Swimmer’s right to

administrative appeal or, if she chose to forgo administrative appeal, the right to

bring a federal civil suit within ninety days. Ms. Swimmer elected not to file

administrative appeals and filed her district court complaint on February 6, 2008.

The district court granted summary judgment to defendant-appellee. The

court held that Ms. Swimmer’s arguments regarding her demotion, which were

contained in her first EEO complaint, were time barred because her district court

complaint was not filed within 90 days of her October 10, 2007, receipt of the

final agency decision on her first EEO complaint. As to the constructive

Appellate Case: 09-7074 Document: 01018360618 Date Filed: 02/03/2010 Page: 2 
1 Generally, we do not consider arguments on appeal that simply direct us to

a party’s district court filings. See Bullock v. Carver, 297 F.3d 1036, 1054

(continued...)

-3-

discharge arguments raised in her second EEO complaint, the court held that

defendant-appellee was entitled to summary judgment on those arguments as well. 

The court held that, even assuming Ms. Swimmer’s version of events were true,

there was no constructive discharge because returning to work would not have

been so intolerable that a reasonable person would have had no choice but to

resign.

On appeal, Ms. Swimmer complains that the district court erred in holding

that her demotion claims were time barred and that defendant-appellee was

entitled to summary judgment on her constructive discharge claims. She directs

us to her district court response to the motion to dismiss for her specific

arguments.

We have jurisdiction over Ms. Swimmer’s appeal under 28 U.S.C. § 1291.

“We review a grant of summary judgment de novo, applying the same standard as

the district court.” Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1261

(10th Cir. 2009). “Summary judgment is only appropriate when there are no

genuine issues of material fact and the moving party is entitled to summary

judgment as a matter of law.” Id. Consideration of the parties’ briefs and the

entire record, including Ms. Swimmer’s response to the motion to dismiss, reveals

that the district court correctly resolved this case.1

Appellate Case: 09-7074 Document: 01018360618 Date Filed: 02/03/2010 Page: 3 
1

(...continued)

(10th Cir. 2002) (recognizing that allowing such a practice would allow parties to

circumvent page limitations and needlessly complicate the task of an appellate

judge). In this case a brief review of Ms. Swimmer’s response is sufficient to

show the district court committed no reversible error.

-4-

The judgment of the district court is therefore AFFIRMED for the reasons

set forth in the court’s Opinion and Order Granting Defendant’s Motion for

Summary Judgment.

Entered for the Court

Neil M. Gorsuch

Circuit Judge

Appellate Case: 09-7074 Document: 01018360618 Date Filed: 02/03/2010 Page: 4