                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 30 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VIOLET LEE,

                Plaintiff-Appellant,

    v.                                                   No. 96-6392
                                                    (D.C. No. 94-CV-2079)
    WILLIAM PERRY, SECRETARY,                            (W.D. Okla.)
    DEPARTMENT OF DEFENSE,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before PORFILIO, KELLY, and HENRY, Circuit Judges.




         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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff was hired as a part-time checker at the commissary at Fort Sill in

1987. In 1993, a full-time position opened for which plaintiff was not selected.

Instead, the job was given to a white woman, younger than plaintiff. Plaintiff

filed a complaint alleging that defendant discriminated 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 did not consider plaintiff’s

untimely response to defendant’s summary judgment motion. After defendant

filed its summary judgment motion, plaintiff filed a motion for extension of time

in which to respond. The district court granted plaintiff’s first motion for

extension of time. Plaintiff’s application for a second extension was denied.

Seven days after the response was due, plaintiff filed 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 third 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 plaintiff’s attorney’s excuses for

needing more time was another summary judgment response due in another case

before the district court. The court recognized that the case counsel referred to

was before another judge and that counsel had also requested an extension of time


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in that case, citing this case as an excuse for needing 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 district court did not abuse

its discretion in denying further extensions of time 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 whether the moving party is entitled to


1
       Although neither party addresses this in their brief, 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 refusal to consider plaintiff’s
summary judgment response as a consequence of the court’s refusal to extend the
time in which it was filed. Insofar as defendant goes out of its way to criticize
plaintiff’s presentation of this appeal, we note that, 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. Although 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 missing.

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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 favorable 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 regime set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), which dictates that the plaintiff has

the burden of establishing a prima facie case of discrimination in her complaint,

id. at 802. The burden then shifts to defendant to articulate a legitimate,

nondiscriminatory reason for the action, after which 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 case of discrimination.

Answering plaintiff’s allegations of discrimination in its summary judgment

motion, defendant presents legitimate, nondiscriminatory reasons why plaintiff

was not selected for the full-time position. The record shows that plaintiff had

been the object of several customer complaints and the subject of various

documented disciplinary actions throughout her tenure. In contrast, the employee

selected for the full-time position had no customer complaints or disciplinary

incidents. In addition, even though she had not worked 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 plaintiff for the full-time position.


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      Plaintiff failed to show that defendant’s stated reasons were pretext. As

stated above, the district court’s action in striking plaintiff’s untimely response to

the summary judgment motion was within its discretion, and the record contains

no evidence of pretext. 2 We, therefore, affirm the district court’s grant of

summary judgment in favor of defendant.

      Finally, to the extent that plaintiff argues on appeal 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 judge recuse himself, and she has

presented no facts that would suggest the judge should have acted sua sponte.

      The judgment is AFFIRMED.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




2
      We note that, in its summary judgment order, the district court stated that it
had reviewed plaintiff’s untimely response and, even if it had considered the
response, plaintiff did not meet her burden. We, too, have reviewed the untimely
response and we agree with the district court that, even considering the untimely
response, plaintiff would not have survived summary judgment.

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