                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 4, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    SONJA J. PALMER,

                Plaintiff-Appellant,

    v.                                                   No. 07-1309
                                              (D.C. No. 05-cv-00082-WYD-MEH)
    DENVER HEALTH AND HOSPITAL                             (D. Colo.)
    AUTHORITY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         In this employment discrimination case, plaintiff Sonja J. Palmer,

appearing pro se, appeals the district court’s grant of summary judgment in favor

of defendant Denver Health and Hospital Authority. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff is a former employee of defendant Denver Health and Hospital

Authority, and she filed suit against defendant under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, alleging that defendant

discriminated against her based on her race (African-American) and gender and

unlawfully retaliated against her when it terminated her employment and engaged

in other discrete acts of discrimination. 1 On April 30, 2007, after conducting a

hearing on the matter which plaintiff attended by telephone and after having

previously dismissed certain of plaintiff’s claims under Fed. R. Civ. P. 12(b), the

district court entered a very thorough and detailed sixteen-page order granting

defendant summary judgment on all of plaintiff’s claims. See R., Doc. 112. In

doing so, the court rejected the recommendation of the magistrate judge that

summary judgment “be granted on all remaining clams in this action, with the

exception of Plaintiff’s claim of retaliation based on adverse employment actions

occurring after September 29, 2004.” Id., Doc. 97 at 14. Specifically, the court

reasoned as follows:

            Defendant filed its Motion for Summary Judgment on October
      13, 2006 . . . . As mentioned above, [the magistrate judge]
      recommended that all claims be dismissed pursuant to Defendant’s
      Motion for Summary Judgment except for the Retaliation claim based
      on adverse employment actions occurring after September 29, 2004.
      This recommendation was based on [the magistrate judge’s] finding


1
       In the proceedings before the district court, plaintiff also alleged that
defendant subjected her to a hostile work environment. Plaintiff has abandoned
that claim in this appeal, however, and we therefore do not need to consider it.

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      that there existed an issue of triable fact regarding whether or not
      Defendant’s proffered explanation for discharging Plaintiff was a
      pretext for retaliation. For the reasons below, I disagree in part with
      [the magistrate judge’s] Recommendation. Contrary to the
      Recommendation, I find that Plaintiff fails to bring forth any
      admissible evidence that Defendant’s reasoning behind her
      termination [i.e., “selling DVD’s as a personal business in the
      workplace during working time” and thereby violating defendant’s
      workplace rules pertaining to solicitation/distribution and use of
      electronic mail, see R., Doc. 82, Ex. A-18] was a pretext for
      retaliation. Accordingly, Defendant’s Motion for Summary
      Judgment is granted as to all claims.

Id., Doc. 112 at 3.

      The district court subsequently entered a judgment in favor of defendant on

May 1, 2007. Id., Doc. 113. On May 30, 2007, more than ten days after the

district court entered its judgment, plaintiff filed a motion asking the court to

reconsider its grant of summary judgment. The district court correctly treated

plaintiff’s motion as a motion for relief from judgment under Fed. R. Civ. P.

60(b) and denied the motion in an order it entered on July 9, 2007, reasoning as

follows:

             As to final judgments, the Tenth Circuit “construe[s] a motion
      for reconsideration in one of two ways.” Hawkins v. Evans, 64 F.3d
      [543, 546 (10th Cir. 1995)]. “If the motion is filed within ten days of
      the district court’s entry of judgment, the motion is treated as a
      motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).”
      Id. (quotation omitted). “Alternatively, if the motion is filed more
      than ten days after the entry of judgment, it is considered a motion
      seeking relief from the judgment under Fed. R. Civ. P. 60(b).” Id.
      (quotation omitted). In the present situation, Plaintiff filed her
      Motion for Reconsideration on May 30, 2007, well over ten days
      from when the [judgment] was issued. Accordingly, Plaintiff’s
      motion will be construed as a motion seeking relief from judgment

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      under Fed. R. Civ. P. 60(b). There are three major grounds that
      justify reconsideration of a motion: (1) an intervening change in the
      controlling law, (2) the availability of new evidence, and (3) the need
      to correct clear error or prevent manifest injustice. Servants of the
      Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). Thus, “a
      motion for reconsideration is appropriate where the court has
      misapprehended the facts, a party’s position, or the controlling law.”
      Id. at 1012.

             In the case at hand, Plaintiff first argues that this Court
      misapprehended the facts and should not have dismissed her
      discrimination claim for Defendant’s failure to promote her as
      untimely. As explained below, I find that even if Plaintiff’s claim
      for discrimination based on Defendant’s failure to promote her was
      not untimely, she has failed to demonstrate that there is a genuine
      issue of material fact as to whether or not Defendant’s reasons for
      [its] decision to not promote Plaintiff are pretextual. As for
      Plaintiff’s other claims, she has not advanced any change in the law
      or newly discovered evidence. Rather, Plaintiff argues that she has
      now organized the evidence in a way that will demonstrate the
      Court’s Order was in error. To the contrary, I find that nothing in
      Plaintiff’s Motion for Reconsideration or attached exhibits
      demonstrate that this Court erred in dismissing Plaintiff’s claims on
      summary judgment.

R., Doc. 125 at 2-3.

      On July 30, 2007, plaintiff filed her notice of appeal, stating that she was

appealing “from the Summary Judgment and Reconsideration orders entered in

this action on the 9th day of July, 2007.” Id., Doc. 127. However, because

plaintiff failed to file her motion for reconsideration within ten days of the entry

of the district court’s judgment (as noted above, the judgment was entered on

May 1, 2007, and plaintiff did not file her motion for reconsideration until May

30, 2007), the thirty-day period for appealing the judgment was not tolled by Fed.


                                          -4-
R. App. P. 4(a)(4)(A)(iv) or (vi), and it therefore expired before plaintiff filed her

notice of appeal. Cf. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241-42

(10th Cir. 2006) (holding that an untimely Fed. R. Civ. P. 59(e) motion did not

toll thirty-day period for filing an appeal regarding underlying summary judgment

order).

      As a result, we lack jurisdiction to consider plaintiff’s appeal from the

district court’s summary judgment order and related judgment, and this appeal

thus concerns only the order entered by the district court on July 9, 2007, denying

plaintiff’s motion for reconsideration. Id. Further, we treat that order as a denial

of a motion for relief from judgment under Fed. R. Civ. P. 60(b), and “[w]e

review the district court’s denial of a Rule 60(b) motion for an abuse of

discretion.” Id. at 1242. “[I]n determining whether a district court abused its

discretion, we are mindful that relief under Rule 60(b) is extraordinary and may

only be granted in exceptional circumstances.” Id. (quotations and alteration

omitted); see also Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289

(10th Cir. 2005) (“Given the lower court’s discretion, the district court’s ruling

[on a Rule 60(b) motion] is only reviewed to determine if a definite, clear or

unmistakable error occurred.”) (quotation omitted).

      We see no abuse of discretion by the district court here as plaintiff failed to

support her motion for reconsideration with a showing of exceptional

circumstances. Moreover, we agree with the district court “that Plaintiff did not

                                          -5-
have sufficient evidence of pretext in order for her discrimination and retaliation

claims to survive summary judgment,” and “[t]here is nothing in Plaintiff’s

Motion for Reconsideration which calls for a different result.” R., Doc. 125 at 5.

      Accordingly, we AFFIRM the denial of plaintiff’s motion for

reconsideration for substantially the same reasons relied on by the district court in

its order dated July 9, 2007. We DISMISS this appeal as to the order and related

judgment granting summary judgment in favor of defendant.


                                                     Entered for the Court


                                                     Deanell Reece Tacha
                                                     Circuit Judge




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