                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS April 22, 2014
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT
                                                                   Clerk of Court


 ANNIE LUCILE LIVINGSTON,
              Plaintiff – Appellant,

 v.                                                     No. 13-3170
                                              (Case No. 5:11-CV-04162-EFM)
 SODEXO, INC., and Affiliated Co.,                       (D. Kan.)
              Defendant – Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

This case is therefore ordered submitted without oral argument.

      Plaintiff Annie Lucile Livingston, proceeding pro se, appeals the district

court’s dismissal of her claims against Defendant SDH Services West, LLC. 1



      *
        This order is not binding precedent, except under the doctrines of law of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.
      1
        Defendant states that Plaintiff has “incorrectly identified ‘Sodexo, Inc.’”
as the employer in her initial complaint and in the present appeal. (Appellee’s Br.
at 1.) Nevertheless, Defendant responded to the complaint and submits to this
Plaintiff was employed by Defendant from 2004 to August 31, 2010, when

Defendant terminated Plaintiff’s employment. Defendant cited a number of

performance-related employment deficiencies as its reason for terminating

Plaintiff’s employment. After her termination, Plaintiff filed a charge of

discrimination against Defendant with the Kansas Human Rights Commission and

subsequently filed her complaint in federal district court. She ultimately alleged

that Defendant discriminated against her on the basis of her race and gender by

failing to promote her. Plaintiff further alleged her termination was the result of

discrimination based on her race, age, and gender. Finally, Plaintiff alleged that

her termination was retaliation for complaints she made regarding certain race-

based comments. Additionally, in her response brief to Defendant’s motion for

summary judgment, Plaintiff alleged for the first time that her managers harassed

her at work and at home.

      The district court dismissed all of Plaintiff’s claims on Defendant’s motion

for summary judgment. The district court concluded Plaintiff had failed to

establish a prima facie case to support her discrimination and retaliation claims

under the McDonnell Douglas analysis. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The district court further concluded that even if Plaintiff




appeal. Defendant offers a possible explanation for Plaintiff’s confusion
regarding the name of the proper entity in its Corporate Disclosure Statement.
(Id.)

                                        -2-
had established a prima facie case to support these claims, she was unable to raise

a genuine issue of material fact as to whether the legitimate, non-retaliatory, and

non-discriminatory reasons articulated by the Defendant for its decision not to

promote Plaintiff and to terminate her employment were pretextual. The district

court also dismissed Plaintiff’s tardy harassment claims, concluding it lacked

subject matter jurisdiction over the claims because they were not included in

Plaintiff’s discrimination charge with the Kansas Human Rights Commission. See

McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1101 (10th

Cir. 2011). The district court also found Plaintiff’s harassment claims could not

be considered because they were not included in the final pretrial order. Hullman

v. Bd. of Trustees of Pratt Cmty. Coll., 950 F.2d 665, 667 (10th Cir. 1991) (“A

plaintiff cannot escape the binding effect of the pretrial order by raising new

issues in a response to the defendant’s motion for summary judgment.”(quotation

marks omitted)).

      Having carefully reviewed the briefs and the record on appeal, we find no

error in the district court’s conclusions. To the extent Plaintiff seeks to appeal

the district court’s denial of her motion for reconsideration, we find no error in

the district court’s order denying that motion. 2 Accordingly, we AFFIRM the

district court’s dismissal of the case for substantially the reasons set forth in the

      2
         Plaintiff also appears to allege in her appeal that Defendant abused the
litigation process. However, this allegation is not supported by the material
included in the record on appeal.

                                          -3-
district court’s thorough twenty-two-page opinion granting summary judgment to

Defendant.

                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




                                      -4-
