UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DELPHI Q. ALVARADO, 

 Plaintiff - Appellant, 

v. 

STATE OF UTAH; DEPARTMENT OF 

CORRECTIONS; JOHN DOES I-V, 

 Defendants - Appellees. 

No. 14-4099 

(D.C. No. 2:11-CV-00714-RJS) 

(D. Utah)

 

ORDER AND JUDGMENT*

 

Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges. 

 

 Delphi Q. Alvarado, proceeding pro se, appeals from the district court’s 

judgment in favor of defendants in her suit arising from the termination of her 

employment with the Utah Department of Corrections (the Department). Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm. 

 

*

 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 

April 30, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Ms. Alvarado began working for the Department in 1994. In 2008, she was 

assigned to the Presentence Investigation Unit, where she had to type numerous 

presentence reports each week. Because of certain impairments, she was unable to 

keep up with her workload. Feeling overwhelmed, she misrepresented to the court, 

counsel, and her supervisors why some of her reports were not completed on time. 

The Department then ended her employment. 

Ms. Alvarado first unsuccessfully pursued administrative remedies. Then, 

represented by counsel, she presented three claims to the district court: one under the 

Americans with Disabilities Act (ADA), one under the Rehabilitation Act of 1973, 

and one for wrongful termination under state law. The district court dismissed the 

ADA claim and the state-law claim, based on Ms. Alvarado’s concession in response 

to defendants’ motion to dismiss. The court later granted summary judgment to 

defendants on the Rehabilitation Act claim. Ms. Alvarado appealed. 

 Because Ms. Alvarado represents herself on appeal, we liberally construe her 

filings. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 

2005). But “although we make some allowances for the pro se plaintiff’s failure to 

cite proper legal authority, his confusion of various legal theories, . . . or his 

unfamiliarity with pleading requirements, the court cannot take on the responsibility 

of serving as the litigant’s attorney in constructing arguments and searching the 

record.” Id. (brackets, citation, and internal quotation marks omitted). Arguments 

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not presented in an opening brief are waived. City of Colo. Springs v. Solis, 589 F.3d 

1121, 1135 n.5 (10th Cir. 2009). 

 The bulk of Ms. Alvarado’s opening brief argues she was denied due process 

during her administrative proceedings, in that (1) her administrative appeal was 

conditioned on purchasing a transcript, which she could not afford; and (2) she was 

denied a fair and impartial pre-termination hearing because the person who 

conducted the hearing was biased against her. She also appears to assert she was 

subjected to a hostile work environment and the termination of her employment was 

in retaliation for being a whistleblower. She complains that the attorney who 

represented her in the district court did not present all the claims she wanted the court 

to consider and states that she was not allowed to address the court. 

 As summarized above, Ms. Alvarado’s district-court complaint set forth claims 

under the ADA, the Rehabilitation Act, and state law. It did not include a due 

process claim or a hostile work environment claim. “We do not review claims on 

appeal that were not presented below.” Pignanelli v. Pueblo Sch. Dist. No. 60, 

540 F.3d 1213, 1217 (10th Cir. 2008). Because those claims were not raised in the 

district court, the “court did not have an opportunity to address [them] and we will 

not consider [them] for the first time on appeal.” Id. at 1218. Further, although her 

state-law claim had a whistleblower element, Ms. Alvarado conceded that the claim 

should be dismissed. 

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We recognize that Ms. Alvarado may have disagreed with how her attorney 

conducted her case and may have wanted to pursue other claims, but that does not 

mean she can now assert claims that were not included in her complaint or that were 

conceded before the district court. Parties generally are bound by their attorneys’ 

actions (or inactions). See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); 

Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). 

 Ms. Alvarado’s opening brief does challenge the district court’s evaluation of 

the evidence in connection with her Rehabilitation Act claim. Our review of the 

grant of summary judgment is de novo. See Hollonbeck v. U.S. Olympic Comm., 

513 F.3d 1191, 1194 (10th Cir. 2008). Having reviewed the record, we, like the 

district court, conclude that Ms. Alvarado failed to present sufficient evidence to 

create a genuine issue of material fact as to crucial aspects of her Rehabilitation Act 

claim. Because the district court did not err in granting summary judgment on this 

claim, we affirm for substantially the reasons set forth at the July 22, 2014, hearing. 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 John C. Porfilio 

 Circuit Judge 

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