* This order and judgment is not binding precedent, e xcept under the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

### AUG 30 2004 

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

HERLINDA MAYO,

Plaintiff-Appellant,

v. FOWLER FITNESS, INC., doing business as Defined Fitness,

Defendant-Appellee. No. 03-2225 (D.C. No. CIV-02-222) (D. N.M.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and PORFILIO , 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 Herlinda Mayo appeals from two district c ourt memorandum opinions and orders, which, in total, granted summary judgment under1 Title VII of the Civil Rights Act of 1964, 42 U.S.C . § 2000e through

§ 2000e-17.

2 Age Discrimination in Employment Act of 1967, 29 U. S.C. §§ 621-634.

3 Because Ms. Mayo is proceeding pro se on appeal, we liberally construe her appellate filings. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

4 Although Ms. Mayo filed her notice of appeal before the district court entered final judgment, her notice of appeal ripene d after that court entered final judgment. See Prod. Credit Ass’n of S. N.M. v. Alamo Ranch Co. , 989 F.2d 413, 417 (10th Cir. 1993). -2- Fed. R. Civ. P. 56(c) in favor of defendant Fowler Fitness, Inc. on certain Title
VII 1 employment-discrimination, age-discrimination 2 and state-law claims and dismissed for lack of subject matter jurisdiction u nder Fed. R. Civ. P. 12(b)(1) one employment discrimination claim. On appeal, Ms . Mayo, who is now proceeding pro se, 3 challenges all aspects of the district court’s dec isions. In addition, she argues she was deprived of her Sixth Amendment right to effective assistance of trial counsel. We have jurisdiction to consider this appeal under 28 U.S.C. § 1291. 4 We affirm. In her first amended complaint, Ms. Mayo, who was then represented by counsel, alleged claims of national origin and age discrimination, retaliation, breach of an express or implied contract, breach of an implied covenant of good faith and fair dealing and wrongful termination. I n the memorandum opinion and order granting summary judgment to Fowler Fitness, the district court held that-3-

(1) because Ms. Mayo failed to controvert most or a ll of the facts Fowler Fitness set forth in its brief in support of its motion forsummary judgment, those facts were deemed admitted; (2) with respect to Ms. Mayo’ s age and national origin discrimination claims, she did not contest Fowler F itness’ contentions regarding her claims alleging denial of various positions anddenial of her request to transfer; she failed to establish a prima facie cas e of discriminatory failure to promote and discriminatory discharge; Fowler Fitnes s established legitimate, nondiscriminatory reasons for all of its actions an d Ms. Mayo failed to establish these reasons were a pretext for discrimination; (3 ) no implied contract existed to alter Ms. Mayo’s at-will employment status, and Fow ler Fitness’ anti-discrimination policy statement did not create such an implied contract; (4) the doctrine of the implied covenant of good fa ith and fair dealing did not apply to Ms. Mayo’s at-will employment, and no exce ptions applied; and (5) Ms. Mayo did not respond to Fowler Fitness’ arg uments concerning her claim for wrongful, retaliatory discharge; she did not have a cause of action for wrongful termination; no public policy authorized o r encouraged her to report an alleged theft; and there was no evidence that Fowle r Fitness was aware she was engaging in protected activity. In the other memor andum opinion and order, the district court dismissed Ms. Mayo’s retaliation cla im for lack of subject matter jurisdiction because she had failed to exhaust her administrative remedies; the-4-

court also granted summary judgment on her failure- to-promote claims as time-barred. 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 review a grant of summary judgment de novo , applying the same standard as the district court. We examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the substanti ve law was applied correctly, and in so doing we examine the factual r ecord and reasonable inferences therefrom in the light most f avorable to the party opposing the motion. Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation o mitted). Also, we review a dismissal for lack of subject matter jurisdiction de novo. U. S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (10th Cir. 1999). Having reviewed the briefs, the district court’s re cord and the applicable law pursuant to these standards, we determine that Ms. Mayo has asserted no reversible error on appeal. We therefore affirm th e challenged district court decisions for substantially the same reasons set fo rth by that court in its thorough and well-written memorandum opinions and orders of August 27, 2003 and October 8, 2003. Ms. Mayo’s argument that her trial counsel providedineffective assistance of counsel is not a basis for reversal of the distr ict court, because there is no5 Appeal No. 04-2150 is a separate appeal, which is n ot yet at issue. It is

Ms. Mayo’s appeal of the district court’s award of attorney’s fees and costs to Fowler Fitness. -5- constitutional right to counsel in a civil action. See Beaudry v. Corr. Corp. of
Am. , 331 F.3d 1164, 1169 (10th Cir. 2003), cert. denied , 124 S. Ct. 1059 (2004). We also reject any other arguments made by Ms. Mayo that are not specifically addressed in this order and judgment. The judgment of the district court is AFFIRMED. We DENY the following motions Ms. Mayo has filed on appeal: (1) first, s econd, third and fourth evidentiary motions filed March 22, 2004, which thi s court, by an order of the same date, construed as a motion to supplement the record; (2) “Motion Memorandum Brief for Damages Award Against Appeelle (sic)” filed April 8, 2004; (3) “Motion Exhaustion Administrative Remedie s” filed April 23, 2004; (4) “Second Motion Genuine Issues of Material Fact” filed April 23, 2004; (5) “Motion Memorandum Brief for Damages Award Agai nst Appeelle (sic)” filed April 23, 2004; (6) “Motion-Petition Order to Appel le’s (sic) Records Statement W Forms Year 1999-2004 Statment (sic) Financial Con dition Corporation, Shareholders and Subsidiaries” filed June 7, 2004; (7) “Motion record from District Court on appeal 03-3225 and []04-2140 5 to Merit Board Judges” filed August 4, 2004; (8) motion that various items docke ted in appeal No. 04-2150 also be docketed in this appeal filed August 4, 200 4; (9) “Motion to Review-6-

Exhibits and Depositions Properly Marked Under Oathon Employer Team Management Depositions to Prove Evidence of Discrim ination Not in Record” filed August 16, 2004. Also, we DENY any other pen ding motions or requests not specifically listed, including Ms. Mayo’s reque st that we consider her appendix on appeal. We DENY Fowler Fitness’ requests for attorney’s fee s and costs on appeal and its motion for sanctions filed June 17, 2004. We DENY as moot (1) Fowler Fitness’ request filed December 5, 2003 to strike M s. Mayo’s (a) response to its corporate disclosure statement, (b) “Material Facts Scope of Evidences and Exhibits,” (c) exhibits index, and (d) certificate of service; and (2) Fowler Fitness’ motion filed March 29, 2004 to strike evid entiary references not in the record set forth in Ms. Mayo’s reply brief. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay Circuit Judge