                                                             FILED
                                                 United States Court of Appeals
                     UNITED STATES COURT OF APPEALS      Tenth Circuit

                            FOR THE TENTH CIRCUIT                       May 24, 2012

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
MARGO BATTLE,

             Plaintiff-Appellant,

v.                                                          No. 11-5094
                                               (D.C. No. 4:09-CV-00106-TCK-FHM)
J-M MANUFACTURING COMPANY,                                  (N.D. Okla.)
INC., d/b/a JM Eagle,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.



      Margo Battle appeals from the grant of summary judgment to her former

employer, defendant J-M Manufacturing Company (“JM Eagle”), on one of her

claims asserting race discrimination in employment, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We have jurisdiction

under 28 U.S.C. § 1291. Because plaintiff fails to point to any evidence that was

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
before the district court at the time of its summary judgment ruling showing that the

court erred in its conclusions, we dismiss the appeal as frivolous.

      Battle is an African-American female who worked for JM Eagle from April

2006 until sometime in December 2007. Whether she resigned or was terminated

was disputed. In February 2009, she filed this suit against JM Eagle, asserting

numerous discrimination claims under federal and state law. The district court

granted JM Eagle’s motion for summary judgment on all of her claims except one, a

failure-to-promote claim. On that claim, the jury found in favor of JM Eagle.

      This appeal concerns only Battle’s claim for failure to train, one of the race

discrimination claims on which the district court granted summary judgment to JM

Eagle prior to trial. Battle asserted that four Caucasian employees were sent for

training on particular machines relevant to the work and that JM Eagle’s decision not

to send her for training was based on race discrimination. The district court held that

she failed to carry her burden to present evidence demonstrating that a genuine issue

of material fact remained to be tried. See Aplt. App. at 259-60.

      The district court set out a four-part legal standard for Battle’s prima facie case

on her failure-to-train claim. Id. at 259. The court held that Battle failed to satisfy

the fourth element, which required her to show that “she was not provided training

under circumstances giving rise to an inference of discrimination, i.e., that she was

denied training given to other similarly situated employees who were not members of

the protected group.” Id. The court reasoned that JM Eagle presented evidence that


                                          -2-
the four white employees sent for training “were selected because they were either

[lead employees], had experience on the relevant machines, or needed training due to

an impending shift change[,]” but the evidence showed that “[p]laintiff had no

experience on the machines at the time the training began, was not a lead, and was

not changing shifts or job duties.” Id. at 259-60. The district court also held that

Battle had “not presented evidence demonstrating weaknesses or implausibilities in

JM Eagle’s explanation that [she] was not selected for the legitimate,

non-discriminatory reason that, in its business judgment, other employees better fit

its selection criteria and were better situated to benefit from the training[,]” and she

therefore failed to show that JM Eagle’s proffered reason was a pretext for

discrimination. Id. at 260. Accordingly the court granted summary judgment to JM

Eagle.

         Battle argues on appeal that the district court erred in ruling: (1) that JM Eagle

was entitled to summary judgment on her training claim; (2) that she did not prove a

difference in treatment based on race with regard to training; (3) that she did not

prove that she was denied training under circumstances giving rise to an inference of

discrimination; (4) that she did not prove that JM Eagle’s proffered reasons for

failing to train her were pretextual; and (5) that no reasonable jury could conclude

that JM Eagle, in failing to provide training to her, acted with discriminatory animus

based on her race.




                                            -3-
       “We review a grant of summary judgment de novo, applying the same legal

standard as the district court.” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1286

(10th Cir. 2011). “Summary judgment is proper when there is ‘no genuine dispute as

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

(quoting Fed. R. Civ. P. 56(a)). “The evidence should be viewed in the light most

favorable to the non-moving party.” Id.

       But “although our review is de novo, we conduct that review from the

perspective of the district court at the time it made its ruling, ordinarily limiting our

review to the materials adequately brought to the attention of the district court by the

parties.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). If the

moving party carries his or her burden to “demonstrat[e] the absence of a genuine

issue of material fact[,]” id. at 670, “the burden shifts to the nonmovant to go beyond

the pleadings and set forth specific facts that would be admissible in evidence in the

event of trial from which a rational trier of fact could find for the nonmovant[,]” id.

at 671 (internal quotation marks omitted). “To accomplish this, the facts must be

identified by reference to affidavits, deposition transcripts, or specific exhibits[.]”

Id.; see Rule 56(c)(1) (stating that “[a] party asserting that a fact cannot be or is

genuinely disputed must support the assertion by: (A) citing to particular parts of

materials in the record,” and listing numerous examples of such materials). In

addition, the appellant’s brief on appeal must include her “contentions and the




                                           -4-
reasons for them, with citations to the authorities and parts of the record on which

[she] relies[.]” Fed. R. App. P. 28(a)(9).

       Battle’s arguments on appeal are almost completely unsupported by any

evidence that was before the district court at the time it made its summary judgment

ruling, leaving us unable to provide her any relief. Some of her assertions are

completely unsupported by evidence. For example, she states that she “experienced

disparate treatment in training, promotions, and discipline as well as hostile and

offensive language based on her race, African-American, throughout her

employment.” Aplt. Opening Br. at 3. Although she cites page 141 of her appendix,

see id., that cite is to the introduction to her district court brief, and there are no

evidentiary cites at all on that page of her brief. A few other assertions are supported

by citations to the transcript from the trial on her failure-to-promote claim, but that

evidence was not before the district court at the time it made its summary judgment

ruling on her failure-to-train claim.

       Battle has pointed to evidence showing that she was trained on one of the

machines relevant to the training she wished to attend. See Aplt. App. at 176. But

the evidence to which she directs us does not specify when she was trained on that

machine. See id. In contrast, JM Eagle presented evidence that Battle was not

trained on the machine in question until after the outside training had ended. See id.

at 74. Battle’s evidence is therefore insufficient to show that the district court erred

in concluding that she was not similarly situated to the Caucasian employees sent for


                                             -5-
training---she failed to present any evidence that she had experience on the relevant

machines “at the time the training began,” was a lead, or was changing shifts or job

duties. Aplt. App. at 259-60 (emphasis added).

      In sum, Battle’s arguments on appeal are insufficiently supported to

demonstrate the existence of a triable issue of fact on her prima facie case under

Adler, 144 F.3d at 670-71. Likewise, she has failed to point to evidence showing that

JM Eagle’s proffered reason for not including her in the training was a pretext for

discrimination. The lack of evidentiary support to challenge the district court’s grant

of summary judgment to JM Eagle means that plaintiff’s appeal is not arguable in

law, and it is therefore frivolous. See United States v. Collins, 920 F.2d 619, 631

(10th Cir. 1990) (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

      The appeal is DISMISSED.


                                               Entered for the Court


                                               Timothy M. Tymkovich
                                               Circuit Judge




                                         -6-
