                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    January 5, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT

    ANNE ELIZABETH STANLEY,

                Plaintiff-Appellant,

    v.                                                     No. 08-2306
                                                (D.C. No. 6:07-CV-01013-BB-DJS)
    ABACUS TECHNOLOGY                                        (D. N.M.)
    CORPORATION,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.


         Anne Stanley 1 appeals from the district court’s summary judgment in favor

of Abacus Technology Corporation, arguing the district court erred in assessing

her employment discrimination and retaliation claims. We affirm. 2


*
       After examining the briefs and appellate record, this panel will honor the
parties’ request for a decision on the briefs without oral argument. See Fed. R.
App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
       At the time of her employment with Abacus, Stanley went by the name
Anne McCormick, which is reflected in the record evidence. See, e.g., Aplee.
Supp. App. at 92. Because she has filed this action as Anne Stanley, we will refer
to her by that name.
2
         We note as an initial matter that Stanley filed a deficient appendix
                                                                          (continued...)
                                   Background

      Stanley was hired by Barry Aguilar and Ken Moore as a photographer for

Abacus in December 2004. Abacus photographers provided general photography

services for Kirtland Air Force Base, including rotations in the studio Abacus

operated on Base, and on “alert duty,” to respond to urgent photography needs.

While she was at Abacus, Aguilar was Stanley’s supervisor and he was

responsible for scheduling her photography assignments. Stanley became

pregnant in 2005, and, in November, gave birth to a daughter. She returned to

work at the end of December 2005. In April 2006, Abacus terminated her

employment.

      After her termination, Stanley filed a charge of employment discrimination

against Abacus with her local Equal Employment Opportunity Commission office

(EEOC). She received a “Notice of Right to Sue” letter from the EEOC and filed


2
 (...continued)
containing only two items from the district court proceedings: a copy of the
district court docket sheet and her response to Abacus’ motion for summary
judgment with exhibits. See Aplt. App. Stanley failed to include a copy of her
complaint, a copy of Abacus’ motion for summary judgment, a copy of Abacus’
reply in support of its motion for summary judgment, and a copy of the district
court’s memorandum opinion, all of which are required under our rules. See 10th
Cir. R. 30.1(A)(1) (applying requirements for record on appeal from 10th Cir. R.
10.3 to appellant’s appendix). But Abacus has filed a supplemental appendix
containing all of the necessary items; accordingly, we will refer to the
supplemental appendix for all record citations. We caution Stanley’s attorneys
that the submission of a deficient appendix can result in the summary dismissal of
an appeal. See, e.g., Burnett v. SW. Bell Tel., L.P., 555 F.3d 906, 910 (10th Cir.
2009).

                                        -2-
a complaint in district court alleging Abacus unlawfully discriminated against her

on the basis of pregnancy and gender. She also alleged she was terminated in

retaliation for complaining about the alleged discrimination. The district court

entered summary judgment against her on all claims in the complaint. Stanley

now appeals from the dismissal of her action.

                               Standard of Review

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Okla. ex

rel. Dep’t of Mental Health, 165 F.3d 1321, 1326 (10th Cir. 1999). Summary

judgment is appropriate “if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material

fact, and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). “When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Simms, 165 F.3d at 1326.

                                    Discussion

      Pregnancy Discrimination Claim

      In 1978, Congress amended Title VII with the Pregnancy Discrimination

Act (PDA) thereby expanding the definition of what constituted discrimination

“on the basis of sex” to include discrimination “on the basis of pregnancy,

childbirth, or related medical conditions.” See 42 U.S.C. § 2000e(k). Stanley

                                         -3-
alleged three main areas of discrimination related to her pregnancy: (1) she was

given a lower performance appraisal due to her pregnancy; (2) she was not given

work modifications during her pregnancy; and, (3) after her daughter was born,

she was not afforded scheduling accommodations to breastfeed her daughter

during lunch. She also asserted she was terminated because of her pregnancy.

      Here Stanley pursues only the arguments relating to her scheduling requests

after she gave birth and to her termination. See Aplt. Br. at 26-30. Because she

presented no direct evidence of discrimination, we must evaluate her claim using

the McDonnell Douglas burden-shifting framework. See Orr v. City of

Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). Stanley must first establish a

prima facie case of discrimination by showing (1) she is a member of a protected

class; (2) she suffered an adverse employment action; and (3) she was treated

differently from similarly situated employees. Id.

      Assuming, arguendo, she has established the first element of the prima

facie case, Stanley has not established the second or third elements. Stanley

testified she never specifically requested an ongoing accommodation to breastfeed

her child during lunch. Aplee. Supp. App. at 56, 60. Instead, she would ask for

individual assignments to be rescheduled if there was a conflict with her lunch

hour. Id. She could not recall a single time when Aguilar refused her request to

reschedule a lunchtime assignment. Id. at 60. Because she never made a

permanent request for an accommodation and all of her temporary schedule

                                        -4-
requests were granted, the district court concluded she had suffered no actionable

discrimination.

      Stanley asserts, however, that her scheduling requests did result in an

adverse employment action, evidenced by the fourth justification for her

termination. In her termination letter, Aguilar wrote:

      You deliberately refused an assignment on 24 March 2006. I had
      asked Eannette Oliver to call you to take a 15 minute accident
      assignment on your way back from another assignment. You were
      flippant and refused. I then had to take the assignment.

Id. at 92. But Stanley made no request for a scheduling accommodation that day

nor claimed a need to breastfeed her daughter at the time she refused the job

request. As she explained in her memo to Human Resources the day after her

termination, she “had just left the base after completing [a] job to pick up some

lunch and head back to work. Within 5 minutes of leaving this job, I received a

call from Mrs. Oliver requesting that I cover an Alert call that had just been

received. I told her, ‘No way, I’m on lunch.’” Id. at 93. Although Stanley

claims she normally feeds her daughter during lunch and was therefore frustrated

to receive two assignments during lunch, she never indicates she made a request

that day to receive an accommodation during her lunch hour. Id. In addition,

Aguilar’s concern, as expressed in the termination letter, was her “flippant”




                                         -5-
attitude in refusing the job assignment. Id. at 92. Stanley has shown no adverse

employment action due to her scheduling requests. 3

      Moreover, she has provided no evidence of similarly situated employees

who were treated differently. She asserts she “sought to have Defendant’s

personnel policy that permitted employees to have duty free lunch hours and a

liberal policy about leaving work for personal reasons uniformly applied to her.”

Aplt. Br. at 27. But she cites no evidence showing Abacus had such a policy, nor

does she identify a single co-worker who received a “duty free lunch” or was

treated differently from her in any way. 4 Id. at 27-28. In fact, her deposition

testimony contradicts this argument. In it she said she did not “see it necessary to

make me permanently off duty during [the noon to 1:00] time period,” in part


3
       After initially concluding Stanley failed to show any actionable
discrimination regarding her ability to breastfeed her daughter during lunch, the
district court went on to note that, in any event, courts have uniformly held
breastfeeding does not fall within the scope of the “related medical conditions”
language in the PDA. See Aplee. Supp. App. at 188 (citing cases). This question
has not been addressed by our court and we need not reach it here because
Stanley’s claim can be resolved on other grounds.
4
       Stanley does include a citation to the affidavit of Shalla Halverson, a
former security manager at Abacus, in which Halverson testified “male employees
would . . . be gone for several days at a time . . . and nothing would happen to
them.” Aplee. Supp. App. at 27 (quotation omitted). But this statement is
insufficient to show Stanley was treated differently from similarly situated
employees because it is unsupported, vague and conclusory. See Jarvis v. Potter,
500 F.3d 1113, 1120 (10th Cir. 2007) (“The purpose of a summary judgment
motion . . . is to determine whether there is evidence to support a party’s factual
claim. Unsupported conclusory allegations thus do not create a genuine issue of
fact.” (quotation omitted)).

                                         -6-
because she did not want to formally ask to be given “special treatment over

everybody else.” Aplee. Supp. App. at 60 (emphasis added).

      Finally, Stanley has not demonstrated she was terminated because of her

pregnancy. But, she asserts “Abacus did not have legitimate non-discriminatory

reasons for terminating [her],” and she “has offered an abundance of eviden[ce]

that Abacus’s proffered reasons for terminating her are untrustworthy.” Aplt. Br.

at 29-30. First, she offers no record support for these conclusory statements. See

id. Second, her argument assumes she established a prima facie case of

discrimination (shifting the burden to Abacus to provide legitimate non-

discriminatory reasons for her termination, which she could rebut by showing the

stated reasons were pretextual). See Orr, 417 F.3d at 1149. But she failed to

establish a prima facie case of pregnancy discrimination; accordingly there is no

basis to shift the burden to Abacus on this issue and no basis to further evaluate

her assertion she was terminated because of her pregnancy. Id. Abacus was

entitled to summary judgment on the pregnancy discrimination claim.

      Retaliation Claim

      Stanley alleged she complained about being subjected to pregnancy and sex

discrimination to a Human Resources Manager at Abacus on February 1, 2006 and

March 27, 2006. She was terminated by Abacus on April 6, 2006, allegedly in

retaliation for her complaints about discrimination. The district court concluded

she had established a prima facie case of retaliation, which led it to consider

                                         -7-
whether Abacus had presented a legitimate and non-discriminatory reason for her

termination.

      The district court began by reviewing the termination letter Abacus gave to

Stanley. That letter states she was being terminated because of (1) her “marginal”

rating on staff relations on her January 2006 performance evaluation and her

“continued poor staff relations;” (2) her breach of “confidentiality involving other

staff members’ confidential matters;” (3) “hav[ing] been verbally counseled for

other violations of policy;” (4) deliberately refusing an assignment in a “flippant”

manner; and (5) deliberately violating policy by not alerting anyone she was

leaving early on April 5, and responding to Aguilar’s inquiry about her absence in

an “offensive and insubordinate” manner. Aplee. Supp. App. at 92.

      According to the district court, this letter provided legitimate

non-discriminatory reasons for Stanley’s termination. The court next considered

whether Stanley had provided evidence raising an inference that Abacus’ reasons

for her termination were pretextual; it reviewed affidavits she supplied from two

other former Abacus employees, Shalla Halverson and Monique Sanders. In her

affidavit, Sanders asserted, “[i]n [her] opinion, discrimination at Abacus is part of

the culture of the office.” Id. at 116. Sanders further said she was subjected to

sexual harassment when she worked at Abacus and it was “common knowledge”

that Stanley was fired after she complained of sexism. Id. at 116-17. But, as the

district court noted, “Ms. Sanders left Abacus in September 2002—over two years

                                         -8-
before Ms. Stanley began working there. She thus has no personal knowledge of

the circumstances surrounding Ms. Stanley’s termination.” Id. at 191. Moreover,

as the district court explained,

      [p]erhaps most important, Ms. Sanders’ testimony that ‘it is common
      knowledge that [Stanley] was fired after she complained about being
      discriminated against’ does not raise a genuine dispute of a material
      fact. [Aplee. Supp. App. at 117]. Indeed, Abacus stipulates that
      Ms. Stanley was discharged after she complained, yet it denies that
      she was discharged because she complained.

Id. (emphasis added).

      The district court then considered the affidavit of Halverson, particularly

her “bald assertion in her affidavit that Ms. Stanley was terminated because she

made a formal complaint.” Id. (quotation omitted). It correctly explained, “this

statement is pure speculation” because Halverson “acknowledges that she did not

get involved in the decision-making process on terminations.” Id. Finally, the

court considered Halverson’s assertion that “male employees would . . . be gone

for . . . days and nothing would happen to them.” Id. at 192. But it concluded the

statement was “insufficient because it is clearly not based on personal knowledge

nor specific enough to raise an inference of pretext insofar as discrimination

against Stanley is concerned.” Id. The court ultimately determined the affidavits

submitted by Stanley did “not reveal enough admissible evidence to support [her]

claims” and did not “raise an inference of pretext.” Id.




                                         -9-
      Stanley now argues the district court erred in granting summary judgment

in favor of Abacus on her retaliation claim, but she points to no additional

evidence (contained in her summary judgment response) the district court failed

to consider. And she does not explain how the court erred in its analysis of her

retaliation claim other than to generally assert, “[genuine] issues of material fact

exist as to whether [Abacus] provided convincing evidence of non-retaliatory

rationales for Stanley’s discharge and as to whether she proffered enough

evidence to raise an inference of pretext.” Aplt. Br. at 34-35. The district court

properly granted summary judgment; Abacus presented legitimate

non-discriminatory reasons for terminating Stanley and she failed to offer

sufficient evidence to raise an inference of pretext.

      Gender Discrimination Claim

      Stanley also alleged Abacus “followed a policy and practice of

discrimination against [her] because of her sex in violation of Title VII.” Aplee.

Supp. App. at 8. She claimed she and other similarly situated female employees

were scrutinized more closely and given lower marks on performance appraisals.

She asserted her termination was a result of a policy to promote male employees

to higher level management positions to the disadvantage of female employees.

Finally, she reiterated the allegation made in her pregnancy discrimination

claim—that her scheduling requests were not given the same accommodations as

similarly situated male employees.

                                         -10-
      On appeal, Stanley asserts “the district court erred by analyzing her

pregnancy and gender discrimination claims as a single related claim as opposed

to two separate and distinct causes of action.” Aplt. Br. at 30. But in response to

Abacus’ motion for summary judgment she offered no evidence to support her

gender discrimination claim other than the affidavits of Halverson and Sanders.

Although she made conclusory assertions she was treated differently from male

co-workers, she provided no evidence to support those assertions. See Aplee.

Supp. App. at 113. Stanley now contends Halverson’s affidavit offers direct

evidence Abacus discriminated against her based on conditions related to her

pregnancy and gender. Alternatively, she argues she established a prima facie

case of gender discrimination, but she relies on the same conclusory assertions

she made in response to the summary judgment motion. Compare Aplee. Supp.

App. at 113 with Aplt. Br. at 32.

      Although the district court’s order does not address Stanley’s gender

discrimination claim separately from her pregnancy discrimination claim, there

was no reversible error. The district court addressed the deficiencies with

Halverson’s and Sanders’ affidavits, which is the only evidence submitted by

Stanley in support of her gender discrimination claim. See Aplee. Supp. App. at

191-92 and 112-13. And, as with her pregnancy discrimination claim, Stanley

cannot establish a prima facie case of discrimination because she presented no

evidence of differential treatment with respect to similarly situated employees.

                                        -11-
See id. at 113; Aplt. Br. at 32. Her unsupported conclusory assertions do not

create a genuine issue of material fact. See Jarvis, 500 F.3d at 1120. The

summary judgment was proper.

                                   Conclusion

      The judgment of the district court is AFFIRMED. Abacus initially filed a

motion to dismiss this appeal, arguing Stanley’s brief was deficient and untimely.

Abacus’ motion to dismiss is DENIED as moot.


                                                   Entered for the Court



                                                   Terrence L. O’Brien
                                                   Circuit Judge




                                       -12-
