                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 February 22, 2011
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    ANJANA A. DOSSA,

                Plaintiff-Appellant,

    v.                                                   No. 10-3252
                                            (D.C. No. 6:06-CV-01263-JTM-KGG)
    MICHAEL B. DONLEY, Secretary,                         (D. Kan.)
    Department of the Air Force,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES and McKAY, Circuit Judges, and PORFILIO, Senior
Circuit Judge.



         Anjana A. Dossa appeals the district court’s grant of summary judgment in

favor of her former employer, the Department of the Air Force, in her suit seeking

review of a decision of the Merit System Protection Board (MSPB) and alleging

that the Air Force’s termination of her civilian employment was due to



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
discrimination on the basis of national origin and retaliation. She also appeals the

denial of her motion to amend the judgment. Exercising jurisdiction under

28 U.S.C. § 1291, we AFFIRM.

                                    Background

      Ms. Dossa is of East Indian national origin. In November 1999, deputy

base civil engineer James Condon hired her to be the chief of the engineering

flight at McConnell Air Force Base. Between 2000 and 2002, Mr. Condon was

satisfied with Ms. Dossa’s performance; her November 2002 review was very

positive. At the end of 2002, however, he started having concerns about her

performance. And in 2003, the engineering flight’s workload ballooned due to

increased funding available to the military. In the opinions of Mr. Condon and

his then-superior, Lieutenant Colonel Charles Emmette, at this point Ms. Dossa

was not effectively managing the engineering flight. Her May 2003 and

September 2003 reviews were unfavorable, and on October 24, 2003, Mr. Condon

placed her on a Performance Improvement Plan (PIP). Her performance did not

improve during the ninety-day PIP period, and on March 23, 2004, Mr. Condon

issued a notice proposing her removal. He terminated her employment on

June 18, 2004.

      Ms. Dossa denies that her performance was unacceptable and asserts that

she was overworked and undersupported. She also complained of discrimination

during the relevant time period. In an April 29, 2003, e-mail message concerning

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scheduling of and communications about certain meetings, she asserted, without

elaboration, “[t]he real problem is discrimination.” MSPB Record at 1627. In

July 2003, she sought equal-employment counseling over her May 2003

performance evaluation, alleging that she was being subjected to harassment and

discrimination because of her national origin. Finally, in October and November

2003, she filed formal charges of discrimination.

      After the removal, Ms. Dossa started a MSPB proceeding. An

administrative judge held an evidentiary hearing and affirmed the removal action.

The MSPB denied review of the administrative judge’s decision. Ms. Dossa then

sought review of the MSPB’s final order before the Equal Employment

Opportunity Commission (EEOC). After another hearing before an administrative

judge, the EEOC concurred with the MSPB’s finding of no discrimination.

      Bringing a “mixed action” under 5 U.S.C. § 7703, Ms. Dossa next sought

review of the MSPB’s decision in the district court and alleged that the removal

decision was based on her national origin and retaliation for complaining of

discrimination. After this court remanded the district court’s initial dismissal of

the discrimination and retaliation claims, see Dossa v. Wynne, 529 F.3d 911

(10th Cir. 2008), the district court granted summary judgment to the Air Force

with regard to the MSPB decision, then separately granted summary judgment to

the Air Force on the discrimination and retaliation claims. The district court also




                                         -3-
denied Ms. Dossa’s motion to amend the judgment. Proceeding pro se before this

court, Ms. Dossa appeals.

                                     Analysis

      Ms. Dossa argues that the district court accepted the defendants’ version of

the facts rather than viewing the facts in the light most favorable to her. She also

argues that the district court erred in reviewing the MSPB proceedings before

separately deciding her discrimination claims. 1

      We review the district court’s summary-judgment decision de novo. See

Daugherty v. Thompson, 322 F.3d 1249, 1254 (10th Cir. 2003). “The court shall

grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). 2 We review the denial of Ms. Dossa’s post-judgment




1
       The Air Force argues that this court does not have jurisdiction to address
this argument because Ms. Dossa’s notice of appeal did not list the decision
reviewing the MSPB proceedings. We note, however, that Ms. Dossa’s appellate
argument cites to an argument in her post-judgment Motion To Amend Findings
Of Fact And Judgment. The notice of appeal did list the order denying the motion
to amend. Thus, affording Ms. Dossa the liberal construction to which her pro se
status entitles her, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam), we have jurisdiction to consider this issue as it is presented.
2
       Fed. R. Civ. P. 56 was amended effective December 1, 2010. The summary
judgment standard previously set forth in subsection (c) was moved to subsection
(a), and there was a word change—genuine “issue” became genuine “dispute.”
But “[t]he standard for granting summary judgment remains unchanged.”
Fed. R. Civ. P. 56 adv. comm. note (2010 amendments).

                                         -4-
motion, which appropriately is construed as a motion under Fed. R. Civ. P. 60(b), 3

for abuse of discretion, “keeping in mind that Rule 60(b) relief is extraordinary

and may be granted only in exceptional circumstances.” Butler v. Kempthorne,

532 F.3d 1108, 1110 (10th Cir. 2008) (quotation omitted).

      Applying these standards, we conclude that the district court appropriately

evaluated the parties’ summary-judgment submissions and did not abuse its

discretion in denying the post-judgment motion. Accordingly, for substantially

the reasons stated in the district court’s orders dated May 6, 2010, and September

2, 2010, the judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Senior Circuit Judge




3
       The motion is entitled Motion to Amend Findings of Fact and Judgment or
In the Alternative, Motion for Reconsideration. But because it was filed more
than ten days after entry of the order granting summary judgment, it is considered
a motion for relief under Fed. R. Civ. P. 60(b). See Hatfield v. Bd. of County
Comm’rs, 52 F.3d 858, 861 (10th Cir. 1995). Nevertheless, because it was filed
within twenty-eight days of the summary-judgment order, it tolled the appeal
filing deadline. See Fed. R. App. P. 4(a)(4)(A)(vi).

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