                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 14 2004
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk


    LADONNA PARIS,

                Plaintiff-Appellant,

    v.                                                  No. 03-5079
                                                  (D.C. No. 01-CV-262-EA)
    SOUTHWESTERN BELL                                   (N.D. Okla.)
    TELEPHONE COMPANY, sued as:
    Southwestern Bell Telephone,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.



         In April 2001, LaDonna Paris filed suit against her former employer,

Southwestern Bell Telephone Company (SBTC) for racial discrimination, alleging

failure to promote and hostile work environment under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 and the Civil Rights Act of


*
  The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
1866, 42 U.S.C. § 1981. She also alleged that SBTC conspired to deny her rights

to equal protection under 42 U.S.C. § 1985(3). After extensive discovery, the

district court granted summary judgment in favor of SBTC on all claims; Paris

now appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

AFFIRM .

                                            I

       We review a grant of summary judgment de novo, applying the same legal

standard used by the district court.   O’Shea v. Yellow Tech. Servs., Inc.   , 185 F.3d

1093, 1096 (10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact.”

Fed. R. Civ. P. 56(c). In conducting our review, “[w]e must draw all inferences

in favor of the party opposing summary judgment.”       O’Shea , 185 F.3d at 1096.

When the issue on appeal is whether the plaintiff established a prima facie case of

discrimination, “our role is simply to determine whether the evidence proffered by

plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her

claim.” Foster v. AlliedSignal, Inc.   , 293 F.3d 1187, 1195 (10th Cir. 2002).




                                           -2-
                                            A

      Paris, an African American woman, alleges that SBTC discriminated

against her because of her race by failing to promote her to management positions

while promoting less-qualified Caucasian employees. To succeed on her failure-

to-promote claim under either Title VII or § 1981, Paris   initially must establish a

prima facie case under the familiar three-step allocation of burdens of proof

mandated by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To that

end, she must demonstrate that: (1) she was a member of a protected class; (2)

she applied for and was qualified for the position; (3) despite being qualified she

was rejected; and (4) after she was rejected, the position was filled or remained

available. Amro v. Boeing Co. , 232 F.3d 790, 796 (10th Cir. 2000);     see also

Kendrick v. Penske Transp. Servs., Inc.    , 220 F.3d 1220, 1226 n.4 (10th Cir. 2000)

(“A plaintiff who alleges discriminatory [treatment] on the basis of race pursuant

to Title VII, 42 U.S.C. § 1983, or § 1981 would have to establish the same

elements in order to make out a prima facie case under the McDonnell Douglas

burden-shifting analysis.”)

      The district court granted summary judgment on the failure-to-promote

claim in part because it was undisputed that: (1) SBTC offered Paris promotions

to two different management positions on two separate occasions in 1999 and

2000, which Paris turned down because she did not think the two positions would


                                           -3-
result in an immediate increase in pay,     1
                                                and (2) both positions were subsequently

filled by African-American employees.

       On appeal, Paris does not dispute the truth of these two facts. Instead, she

appears to claim that: (1) SBTC’s promotion offers were shams because they

would not increase her salary; (2) the district court erroneously cited and applied

McDonnell Douglas Corp. v. Green          , 411 U.S. 792 (1973), to the facts of this case

because she presented direct evidence of discrimination; (3) the district court

disregarded evidence relevant to her summary judgment motion; (4) the district

court erred in relying on admissions made in her depositions and journal, which

she characterizes as irrelevant and excludable hearsay “facts of testimony,”

(Appellant’s Br. at 8); (5) the summary judgment provisions are “inextricably

linked to Rule 8(a)’s simplified notice pleading standard,” (      id. at 14), and

summary judgment should have been denied under the Rule 12(b)(6) standard that


1
  Paris admitted that, although the salary for the first management promotion
offer was less than her salary in a non-management position, she had been
informed that “with 100% performance, she would have been able to earn an
additional $12-15,000/year in commissions, making the salary for this job higher
than her salary at the time. [She] testified that she turned down the position
because she believed that she would make less money because of the training
involved in accepting this position and because she did not think she would
immediately make sales.” (Appellee App., Vol. I at 132.)       Similarly, SBTC
showed that Paris “declined a second promotion offered her to a first-line
management training position . . . because it did not involve an increase in pay
. . . . Because Plaintiff was already receiving [the maximum] 10% above her
base pay . . . she could not receive a pay increase for this promotion” until
she completed the six-month “acting” manager period. (      Id. at 132-33.)

                                                -4-
allows a court to dismiss a complaint only if it is clear that no relief could be

granted under any set of facts; and (6) the district court erred in allowing SBTC to

respond to her cross-motion for summary judgment, which she incorporated in her

response brief to SBTC’s motion for summary judgment.

       Many of Paris’s arguments display a misunderstanding of legal principles

and the rules of procedure. For example, despite her arguments to the contrary:

(1) a party’s admissions are exceptions to the hearsay rules,     see Fed. R. Evid.

801(d)(2), and may be used as summary judgment evidence; (2) Rule 8(a) and

Rule 12(b)(6) standards do not apply to Rule 56 motions for summary; and (3) a

party is always entitled to respond to a motion for summary judgment, even if it is

made as part of the opposing party’s response to a motion for summary judgment,

see Fed. R. Civ. P. 56(c), (e);   Torres v. First State Bank of Sierra County   , 550

F.2d 1255, 1257 (10th Cir. 1977) (“The provisions of Rule 56(c) for notice to the

opposing party and an opportunity for him to serve opposing affidavits are

mandatory. Noncompliance therewith deprives the court of authority to grant

summary judgment.”) (citation omitted).

       As to Paris’s remaining claims, we cannot consider a promotion to a first-

line management position offered to all qualifying employees a sham; evidence in

the record indicates that such an offer would include higher retirement benefits

and would constitute a promotion in status even if it did not immediately result in


                                            -5-
a higher salary.   Moreover, we agree with the district court that Paris presented no

direct evidence of discrimination in this case. “A plaintiff in an employment

discrimination case proves discrimination by direct evidence when she presents

proof of an existing policy which itself constitutes discrimination,”      Tomsic v.

State Farm Mut. Auto. Ins. Co     ., 85 F.3d 1472, 1477 (10th Cir. 1996) (quotations

omitted), or when she can show      “oral or written statements on the part of

a defendant showing a discriminatory motivation,” Kendrick , 220 F.3d at 1225.

SBTC’s hiring policy is not discriminatory on its face, and there is no evidence

of oral or written statements showing a discriminatory motive.          See Mosley v.

Pena , 100 F.3d 1515, 1519-20 (10th Cir. 1996) (discussing the difference between

direct and indirect evidence of discrimination).

       We are next told that the district court erred in granting summary judgment

in light of facts demonstrating that Paris was never offered a management

position in her office and statistical evidence showing an under-utilization of

African Americans as managers in that department. These arguments, however,

do not persuade us that Paris has established a prima facie case of failure-to-

promote. Paris’s own written testimony stated that she informed her supervisor

when she requested a promotion to a management-type position that she preferred

to be promoted to a position as a trainer—one of the positions she was offered but

rejected. Even if statistical evidence existed that could support an inference of


                                             -6-
intentional discrimination in Paris’s case,    2
                                                   because Paris could not establish the

third element of her prima facie case showing an adverse employment action,

summary judgment was appropriate.         “[A] complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.”   Celotex Corp. v. Catrett , 477 U.S. 317, 322. 322 (1986) (holding

that summary judgment is appropriate against any party who “fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.”).

       In short, Paris freely admits that she was offered two promotions to existing

management positions for which she was qualified, both of which she rejected.

We conclude, therefore, that she could not make a prima facie case demonstrating

a failure to promote, and summary judgment was proper.            See Amro , 232 F.3d

at 798 (affirming grant of summary judgment because plaintiff failed to make

prima facie showing that “there were actual positions for which he was qualified

and which he was denied”).




2
  To the contrary, we note that SBTC established through the testimony of other
African American Service Representatives that they were asked whether they
were interested in management positions, but they declined the opportunity to be
considered.

                                              -7-
                                           B

       To survive summary judgment on her racially-hostile-work-environment

claim, Paris must demonstrate that a rational jury could conclude “that the

workplace is permeated with discriminatory intimidation, ridicule, and insult[]

that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”           O’Shea , 185 F.3d at

1097 (quotations omitted). This standard requires a showing of more than “a few

isolated incidents of racial enmity.”   Trujillo v. Univ. of Colo. Health Sci. Ctr.   ,

157 F.3d 1211, 1214 (10th Cir. 1998).

       Our review of the record demonstrates that Paris’s hostile-work-

environment-claim is supported by isolated and ambigous statements at best.

Those incidents cited do not rise to the level adequate to prevail, particularly

when considered in the context of Paris’s own description of her working

conditions. For example, Paris admitted that she never heard her supervisors

make any derogatory racial remarks, and that she had a cordial or professional

relationship with all of them. She also testified that no one in her line of

management ever made racially derogatory remarks.         She admitted that her

various managers gave her opportunities to develop her management/training

skills and recommended her for promotion to management.




                                           -8-
       “Courts attempting to make the determination of whether the environment

is hostile must examine all of the circumstances alleged, including the frequency

of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.”       Jones v. Barnhart , 349 F.3d 1260, 1268

(10th Cir. 2003) (quotation omitted). We agree with the district court that viewed

in its totality and in the light most favorable to Paris, the evidence is insufficient

for Paris’s racially-hostile-work-environment claim to survive summary judgment.

See Trujillo , 157 F.3d at 1214 (affirming summary judgment on basis that

plaintiff’s work-related complaints did not rise to level of actionable harassment).

We therefore affirm the grant of summary judgment to SBTC on Paris’s

racially-hostile work environment claim.

                                           C

       Paris also alleges that SBTC conspired to deny her rights to equal

protection in violation of 42 U.S.C. § 1985(3). In its summary-judgment motion,

SBTC argued that any § 1985 conspiracy claims alleged in Paris’s complaint were

not actionable because Paris admitted that “the same facts upon which her

conspiracy claim is based are the same facts upon which she bases her claim for

race discrimination under Title VII.”    (Appellee App., Vol. I at   153.) The district

court granted summary judgment on Paris’s conspiracy claim based on its


                                           -9-
agreement with SBTC that “§ 1985 may not be used to redress violations of Title

VII” under Great American Federal Savings & Loan Association v. Novotny        , 442

U.S. 366, 378-79 (1979), and    Drake v. City of Fort Collins , 927 F.2d 1156, 1160

(10th Cir. 1991).   Paris v. Southwestern Bell Telephone   , No. 01-CV-0262-EA(J),

at 7 (N.D. Okla. filed April 16, 2003). On appeal, Paris asserts that the district

court erred by failing to address her argument that she alleged § 1981 as the

“proper substantive basis for the remedy provided by § 1985(3).” (Appellant’s

Br. at 17.)

       We have never considered the question of whether § 1981 may form the

substantive basis for violation of § 1985(3), but the Third Circuit, citing our

opinion in Tilton v. Richardson , 6 F.3d 683, 686 (10th Cir. 1993), has stated that

“[t]he great weight of precedential authority . . . supports the traditional limitation

of § 1985(3) to questions of interstate travel and involuntary servitude and

does not suggest that §§ 1981 or 1982 claims in general may form the basis of

a § 1985(3) action.”   Brown v. Philip Morris Inc.   , 250 F.3d 789, 806 (3d Cir.

2001). We need not reach the issue in the instant case, because we conclude that,

even if the district court erred in failing to address Paris’s argument that § 1981,

and not Title VII, was the basis for her § 1985(3) claim, summary judgment was

yet proper.




                                          -10-
       Section 1985(3) prohibits two or more persons from conspiring “for the

purpose of depriving, either directly or indirectly, any person . . . of the equal

protection of the laws, or of equal privileges and immunities under the laws.”

42 U.S.C. § 1985(3). To state a claim under § 1985(3), a plaintiff must show:

(1) a conspiracy, motivated by racially-discriminatory animus; (2) to deprive

plaintiff of equal protection of the laws; (3) an act in furtherance of the

conspiracy; and (4) a deprivation of rights resulting therefrom.   Tilton , 6 F.3d at

686. Like Paris’s hostile-work-environment claim, this claim fails because Paris

did not show sufficient facts demonstrating a racial, discriminatory animus on the

part of her managers at SBTC. She did not present facts sufficient to show that

her managers conspired against her because she is African American,      3
                                                                             and

she presented no evidence showing that Caucasian employees who were




3
  Paris alleged that her managers conspired to deny her equal protection under
§ 1981 and § 1985(3) by neglecting and refusing to recommend her for evaluation
and testing for a management position; showing preference to less-qualified white
counterparts; giving incorrect or no information concerning management
promotional policies; “utilizing flawed discriminatory policies and procedures” to
deny her promotion opportunities; offering her management positions constituting
a reduction in her compensation; and fostering racial animus by singling out Paris
and “continually violating her rights under the CWA Collective Bargaining
Agreement.” (Appellee App., Vol. I at    488-89.)

                                            -11-
similarly situated were treated more favorably than she was treated.   4
                                                                           We

therefore affirm summary judgment on Paris’s § 1985(3) claim.

                                            D

       As for Paris’s remaining claims, she faults the district court for failing to

address a retaliation claim; however, a review of her complaint shows that she did

not allege facts demonstrating retaliation. She also claims that the court failed to

address her § 1981 claims, but the district court’s order mentioned her § 1981

claims on the first, fifth, and seventh pages of the order, and concluded that

SBTC was entitled to summary judgment on “all of [Paris’s] claims” because it

was undisputed that she was offered two management positions and because she




4
  Paris claims that, between November 1998, when she first expressed interest in
promotion to a management position, and December 1999, when she was offered
her first promotion, Caucasian employees promoted to manager were not required
to take and pass a management test that she was told she had to pass in order to be
promoted. However, the record reveals that named employees, with the exception
of one outside hire, all took and passed the management test before being
promoted. Paris also claims that other managers were offered more money than
she earned. But the record shows that no one promoted into the last position Paris
rejected was offered an increase over base salary greater than the maximum ten
percent increase Paris was offered pursuant to company policy. Moreover, the
African American woman who accepted the position was given the maximum
increase while all others promoted during that period received less than a ten
percent increase.

                                           -12-
had not presented evidence of pervasive or severe racial harassment.     See Paris v.

Southwestern Bell Telephone , No. 01-CV-0262-EA(J) at 1, 5, 7, 8 (N.D. Okla.

filed April 16, 2003).

       The same is true for Paris’s argument that the district court erred in denying

her motion to amend her complaint to add a claim for constructive discharge nine

months after the cutoff date in the district court’s scheduling order. In denying

the motion to amend, the district court noted Paris’s failure to show good cause

under Fed. R. Civ. P. 16(b) for allowing an amendment out of time, and her

failure to file an EEOC charge to exhaust her administrative remedies on the

constructive discharge claim, which was not reasonably related to her original

charges of discrimination based upon a failure to promote.

       “[W]e review a district court’s refusal to modify a scheduling order for

abuse of discretion.”    Burks v. Okla. Pub. Co. , 81 F.3d 975, 978 (10th Cir. 1996).

On appeal, Paris argues that the court erred by not applying Fed. R. Civ. P.

15(a)’s standards, and that this court should simply forgive what she characterizes

as “negligence of her previous attorneys.” (Appellant’s Br. at 41-43.) Rule 15(a)

does not apply under the circumstances, and we conclude that the court did

not abuse its discretion in denying the motion to amend.      See Burks , 81 F.3d

at 978-79.




                                           -13-
                                             II

       Paris’s motion to supplement the record on appeal with SBTC’s

confidential affirmative action program is        DENIED . The request to seal the

record is GRANTED as to the confidential documents submitted with her motion

to supplement. All other outstanding motions, including motions for sanctions

and attorneys fees are   DENIED .

       The judgment is AFFIRMED .


                                                         Entered for the Court



                                                         Carlos F. Lucero
                                                         Circuit Judge




                                             -14-
