                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 4, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    LYNN R. WOODS-GASTON,

                Plaintiff-Appellant,

    v.                                                 No. 08-6278
                                                (D.C. No. 5:07-CV-01400-C)
    SEQUOYAH ENTERPRISES, INC.,                        (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Plaintiff-appellant Lynn R. Woods-Gaston, proceeding pro se, appeals a

district court decision granting summary judgment to her former employer,

Sequoyah Enterprises, Inc., on her claim of racial discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2. She also seeks

reversal of a district court order granting Sequoyah’s motion for attorneys’ fees


*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
incurred in connection with a motion to compel. Also before us is Ms. Gaston’s 1

motion to proceed in forma pauperis. Having carefully reviewed the record and

after full consideration of Ms. Gaston’s arguments, we conclude this appeal is

frivolous and warrants dismissal.

                                         I.

      Sequoyah hired Ms. Gaston to work as a cook in one of its juvenile

detention facilities on February 26, 2004, and fired her one month later on March

26. Ms. Gaston, who is African American, alleged in her complaint that her

termination was racially motivated and in retaliation for reporting misconduct on

the part of a white employee. She argues that this alleged discrimination is

evidenced by the fact that Sequoyah failed to even discipline the white employee

for her misconduct.

      On December 1, 2008, Sequoyah filed a motion for summary judgment

defending its decision to terminate Ms. Gatson, asserting that she was fired solely

because of attendance and performance-related issues. Specifically, it claimed

that Ms. Gaston repeatedly failed to show up for her scheduled shifts and put

others at risk by leaving the kitchen knives unlocked and unattended. In support,

Sequoyah submitted a copy of Ms. Gaston’s disciplinary file, showing that she

missed work at least five times during her brief employment and was twice


1
      We follow Plaintiff’s lead here in referring to herself as simply Lynn
Gaston rather than Woods-Gaston.

                                        -2-
disciplined for incidents relating to the kitchen knives. It also provided excerpts

from other employees’ personnel files to demonstrate that employees of all races

received written and verbal warnings concerning attendance and performance

problems. And it specifically included a copy of the disciplinary action taken

against the white employee for the incident mentioned in Ms. Gaston’s complaint.

Ms. Gaston did not respond to Sequoyah’s motion.

      The district court granted the motion on December 23, 2008, concluding at

the first step of the McDonnell Douglas 2 analysis that Ms. Gaston had failed to

establish a prima facie case of discrimination because the evidence demonstrated

she was treated no differently than other similarly situated employees. And even

if she had established her prima facie case, the court also concluded that

Sequoyah had come forward with a legitimate non-discriminatory reason for

firing her, noting that Ms. Gaston’s failure to respond to the motion had left her

employer’s proffered reasons unrebutted. It therefore dismissed the lawsuit, and

this appeal followed.

                                         II.

      Because Ms. Gaston seeks to proceed in forma pauperis, 28 U.S.C.

§ 1915(e)(2)(B) mandates that her appeal must be dismissed if we find it to be

frivolous, which we do. See Stafford v. United States, 208 F.3d 1177, 1179 n.4

(10th Cir. 2000) (explaining that “when an appeal is found frivolous in

2
      McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

                                         -3-
connection with a procedural review of the appellant’s right to proceed in forma

pauperis (IFP), dismissal is mandated under 28 U.S.C. § 1915(e)(2)(B)”).

      As the district court instructed, to make out a prima facie case of

discrimination, Ms. Gaston had to show that (1) she belonged to a protected class;

(2) she suffered an adverse employment action; and (3) the challenged action took

place under circumstances giving rise to an inference of discrimination. E.E.O.C.

v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). Though she satisfied the

first two prongs of this test, Ms. Gaston offered no evidence to raise an inference

of unlawful discrimination in order to satisfy the third prong. She did claim that

Sequoyah treated her differently than the white employee mentioned in her

complaint. This allegation, with supporting evidence, might have been sufficient

to raise such an inference. See id. at 800-01 (holding that a plaintiff may raise an

inference of discrimination by showing that “the employer treated similarly

situated employees more favorably”). But Sequoyah came forward with

irrefutable documentary evidence to contradict Ms. Gaston’s allegation. It proved

that it had, in fact, disciplined the white employee mentioned in the complaint and

also that it routinely disciplines employees of all races for performance and

attendance problems. Ms. Gaston offered nothing in response, thus leaving

unrebutted Sequoyah’s claim that she was treated no differently than other

similarly situated employees.




                                         -4-
      Ms. Gaston’s pro se status entitles her to a liberal construction of her

pleadings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). But as we have repeatedly held, “‘pro se parties [must] follow

the same rules of procedure that govern other litigants.’” Id. (quoting Nielsen v.

Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, if Ms. Gaston had evidence to

show that she was somehow treated differently from any other employee, she was

bound to provide it at the risk of having her case dismissed. It is neither the

district court’s role nor our role to advocate on her behalf. See Garrett, 425 F.3d

at 840. We think that her failure to respond to Sequoyah’s motion or otherwise

offer evidence from which one could infer unlawful discrimination on the part of

her employer renders her case frivolous.

      Ms. Gaston’s challenge to the district court’s December 23, 2008, sanction

order is also frivolous. The district court properly exercised its discretion under

Federal Rule of Civil Procedure 37(d)(3) in compensating Sequoyah in the

amount of $562.50 for the attorneys’ fees incurred seeking compliance with its

discovery requests. Sequoyah’s motion to compel was necessitated by

Ms. Gaston’s refusal to completely answer its interrogatories and her assertion

that she would not produce requested documents until trial. Such behavior cannot

be tolerated. As we just discussed, Ms. Gaston’s pro se status did not relieve her

of her disclosure obligations under the federal rules. She therefore has no




                                           -5-
non-frivolous challenge to the district court’s exercise of its discretion in ordering

her to pay Sequoyah’s attorneys’ fees.

      Ms. Gaston’s motion to proceed in forma pauperis is DENIED and this

appeal is DISMISSED as frivolous under 28 U.S.C. § 1915(e)(2)(B).

                                                Entered for the Court



                                                Wade Brorby
                                                Senior Circuit Judge




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