                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 22, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    JUD ITH SIZEM OR E,

             Plaintiff-Appellant,

     v.                                                No. 05-2198
                                               (D.C. No. CIV-04-272 JP/DJS)
    STATE OF NEW M EXICO                                 (D . N.M .)
    DEPARTM ENT OF LABOR;
    CONROY CHINO, New M exico
    Secretary of Labor, individually;
    JACKIE INGLE, Division Director;
    HOW ARD W ILLIAM S, Deputy
    Division Director, Administrative
    Services Division; JOEL K OR NG UT,
    Bureau Chief, Human Resources
    B ureau; TER RY O TH IC K,
    Information Services Consultant, New
    M exico D epartment of Labor,
    individually; RO BERT CA SWELL
    IN VESTIG ATIO NS, IN C., a
    New M exico corporation; ROBERT
    C ASEY ; K A RL WIESE; LER OY
    LUCERO, individually and in their
    capacities as investigators, Robert
    Caswell Investigations, Inc.,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT *

*
       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not binding precedent, except under the doctrines of law of the case, res judicata,
                                                                       (continued...)
Before HENR Y, BRISCO E, and M U RPH Y, Circuit Judges.




        Judith Sizemore appeals from the district court’s orders (1) granting

summary judgment in favor of the defendants on her complaint alleging violations

of Title VII and 42 U.S.C. § 1983; (2) denying her motion to extend time to

respond to the summary judgment motion; and (3) denying her Fed. R. Civ. P.

59(e) motion to amend the judgment. W e affirm.

                                       FACTS

        The State of New M exico Department of Labor (DOL) employed

M s. Sizemore as a Computer and Information Systems M anager in its

M anagement and Information Systems Bureau. It terminated her employment

effective M ay 6, 2003. M s. Sizemore filed her complaint against the defendants

on M arch 10, 2004, alleging gender discrimination and violation of her civil

rights. 1




*
 (...continued)
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
1
       Defendants Robert Casey, Leroy Lucero, Karl W eise and Robert Casw ell
Investigations, Inc., were dismissed from the case on January 28, 2005.
M s. Sizemore does not challenge their dismissal in this appeal. Reference to the
“defendants” in this order and judgment means the remaining defendants, who
were not dismissed in the January 28, 2005, order.

                                         -2-
      The district court entered an initial pretrial report including deadlines for

dispositive motions and responses. This report, however, contained an error: it

required that pretrial motions be filed with the court and served on the opposing

party by M arch 28, 2005, but responses were to be filed and served by an earlier

date, M arch 22, 2005. On October 5, 2004, the magistrate judge assigned to the

case amended the pretrial report sua sponte to provide that responses be filed and

served on or before April 11, 2005. Aplt. App. at 85. No party objected to this

order amending the pretrial report.

      On M arch 28, 2005, the defendants filed their motion for summary

judgment. They served the motion on M s. Sizemore by electronic mail.

M s. Sizemore asserts, however, that the exhibits accompanying the memorandum,

which ran well over one hundred pages, were sent to her by regular mail.

      On April 9, 2005, M s. Sizemore’s attorney sent a letter by fax and regular

mail to defendants’ counsel, requesting an extension of time in which to file her

response to the motion for summary judgment. Id. at 243. Counsel explained that

“the memorandum, as well as the documents in support, are rather voluminous

and I require more time than the fourteen days provided for under the Local Rules

to respond.” Id. 2 Notwithstanding the April 11, 2005 deadline for responses



2
      Counsel appears to have been referring to D.N.M .LR-Civ. 7.6(a), which
provides a party with fourteen days to respond to a motion. In calculating her
response time for purposes of her appellate argument, M s. Sizemore does not rely
                                                                     (continued...)

                                         -3-
specifically provided in the amended pretrial report, counsel stated that he had

calculated the response date as A pril 14, 2005. He requested an extension to

April 28, 2005.

      Defendants’ counsel responded to the letter on April 12, stating their

position that the response had been due on April 11, 2005. They offered an

extension until April 14, however, conditioned on M s. Sizemore’s agreement to

extend the time for their reply. A paralegal working for M s. Sizemore’s counsel

telephoned defendants’ counsel on April 12, requesting an extension until April

18. Defendants’ counsel did not agree. On April 15, 2005, having received no

response from M s. Sizemore to their motion for summary judgment, defendants

filed a notice that briefing was complete.

      On April 18, 2005, the district court granted defendants’ summary

judgment motion. In its order, the district court noted that M s. Sizemore had not

filed a response to the motion within the time permitted by the court’s rules (that

is, on or before April 11, 2005). Nor had she filed a response by the extended

deadline that defendants had proposed, April 14, 2005. Consequently, the district

court reasoned, she w as deemed to have consented to its grant of the motion. In

any event, the district court continued, having reviewed the motion on its merits,



2
 (...continued)
on the local rule. Instead, she calculates the response date based solely on Fed.
R. Civ. P. 56(c). Accordingly, we do not address whether the deadline set by the
magistrate judge complied with the provisions of D .N.M .LR-Civ. 7.6(a).

                                         -4-
the defendants had met their burden under Fed. R. Civ. P. 56(e), and were

therefore entitled to summary judgment.

         At approximately 10:30 p.m. on the same day that the district court entered

summary judgment, M s. Sizemore filed a motion for extension of time to file a

response to the defendants’ motion for summary judgment. See Aplt. App. at

397. 3   She began her motion by calculating that “[u]nder Fed. R. Civ. P. 6(e)” her

response had been due on April 14, 2005. Id. at 237. She denied defendants’

contention (and the district court’s conclusion), that the response had been due on

April 11. W ithout mentioning the amended pretrial report, M s. Sizemore stated

that she had determined the response date by “resolv[ing] [the] obvious

typographical error” in the original report, and by “calculat[ing] the deadline for

responding as April 14th, 2005, not the [sic] M arch 22nd, 2005.” Id. at 238.

Explaining her failure to file a response even by the latter date, April 14,

M s. Sizemore noted that “[d]ue to a miscommunication between . . . counsel and

his staff,” the response had been prepared by April 14th, but not filed until four

days later. Id. at 239. Defendants opposed the motion for extension of time.




3
     M s. Sizemore claimed she had no knowledge of the entry of summary
judgment w hen she filed her motion.

                                           -5-
       M s. Sizemore filed her summary judgment response on M ay 3, 2005. On

the same day, she filed a motion pursuant to Fed. R. Civ. P. 59(e) to alter or

amend the judgment dismissing her complaint. 4

       On June 24, 2005, the district court denied the motion for extension of

time; struck M s. Sizemore’s response to the motion for summary judgment; and

denied her Rule 59(e) motion. M s. Sizemore filed her notice of appeal the same

day.

                                    ANALYSIS

       1. Due date for summary judgm ent response

       W e begin by determining whether M r. Sizemore’s summary judgment

response was due on April 11, 2005 or on April 14, 2005. At first glance, this

point may seem inconsequential, for at least two reasons. First, M s. Sizemore

filed neither a summary judgment response nor a motion for extension even by the

latter of these two dates. Second, defendants were willing to grant her an




4
       Defendants have argued that the Rule 59(e) motion was filed outside the
ten-day deadline for filing such motions. It appears, however, that the motion
was timely. The district court entered its order granting summary judgment on
April 18, 2005. Under Fed. R. Civ. P. 6(a), intermediate Saturdays, Sundays, and
legal holidays are excluded from the ten-day calculation for filing a Rule 59(e)
motion. This made the motion due on M ay 2, 2005. A local rule provides,
however, that a document filed electronically before 8:00 a.m. the next business
day is considered to have been filed on the previous business day. See
D.N.M .LR-Civ. 5.5(a). M s. Sizemore electronically filed her Rule 59(e) motion
at 7:10 a.m. on M ay 3, 2005. The district court therefore found that the motion
was timely filed. See Aplt. A pp. at 401 n.5.

                                         -6-
extension to April 14 to do so in any event. It is necessary to resolve the issue,

however, because the district court’s exercise of its discretion to deny

M s. Sizemore’s motion for extension of time rested heavily on its finding that her

motion should have been filed by April 11, 2005.

      M s. Sizemore does not deny that the magistrate judge required her to file a

response on or before April 11, 2005. She argues, however, that the magistrate

judge lacked authority to set that deadline, because the deadline did not provide

her w ith the ten-day response time implicitly required by Fed. R. Civ. P. 56(c).

See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1163-64 (10th Cir. 1998). In

her reply brief, M s. Sizemore further argues that the magistrate judge did not have

authority to enter the order under Fed. R. Civ. P. 16(b), which permits only the

district court to modify a pretrial order unless otherw ise provided by local rule.

M s. Sizemore did not object to the magistrate judge’s order amending the

deadline within the time provided for such objections by the Rules of Civil

Procedure. See Fed. R. Civ. P. 72(a). Nor does the record reflect that she raised

either of her arguments concerning the magistrate judge’s authority to the district

court at any time. W e therefore conclude that she has failed to present any

cognizable appellate argument to overcome the district court’s reliance on the

specific April 11, 2005, response date set forth in the amended pretrial report. 5



5
      It should be clear, moreover, that the deadline was April 11 and not some
                                                                     (continued...)

                                          -7-
      2. Denial of motion for extension of tim e

       As noted, M s. Sizemore filed a motion for extension of time on April 18,

2005, seven days after her summary judgment response was due. The district

court may, in its discretion, “upon motion made after the expiration of the

specified period permit the act to be done where the failure to act was the result

of excusable neglect.” Fed. R. Civ. P. 6(b)(2). “W e review for abuse of

discretion a district court's decision whether or not to consider such an untimely

motion.” Quigley v. Rosenthal, 427 F.3d 1232, 1237 (10th Cir 2005).

      In determining w hether a movant seeking additional time has shown

excusable neglect, courts consider “the danger of prejudice to the [opposing

party], the length of the delay and its potential impact on judicial proceedings, the

reason for the delay, including whether it was within the reasonable control of the

movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.

Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993) (stating factors in context of

“excusable neglect” test of Bankruptcy Rule 9006(b)); Panis v. M ission Hills



5
 (...continued)
later date as calculated under Fed. R. Civ. P. 6. The pretrial report contained no
“period of time” or “prescribed period” within which M s. Sizemore had to act.
Rather, the pretrial report, as amended, set forth a specific date by which
M s. Sizemore had to file her response to the defendants’ motion for summary
judgment. Thus, neither Rule 6(a) nor 6(e) were triggered by the deadline set
forth in the pretrial report. See, e.g., Fleischauer v. Feltner, 3 F.3d 148, 151
(6th Cir. 1993) (“Computation under Rule 6(a), by its very nature, is only
necessary when a court orders something to be done in a particular number of
days.”).

                                         -8-
Bank, N.A., 60 F.3d 1486, 1494 (10th Cir. 1995) (applying Pioneer Inv. Servs.

definition of “excusable neglect” in Rule 6(b) context). The district court found

that the reason for delay, the most important factor, see United States v. Torres,

372 F.3d 1159, 1163 (10th Cir. 2004), did not favor M s. Sizemore.

      The district court concluded that M s. Sizemore’s explanations for the delay

did not show excusable neglect. She should have realized shortly after the motion

was filed that its supporting documents w ere voluminous and that she would

require extra time in which to respond. She did not make any effort to contact

opposing counsel to find out whether a motion to extend the time would be

opposed until A pril 9, 2005, when the deadline was already fast approaching.

      M s. Sizemore argues, however, that the error was not the result of bad faith

or a calculated desire to disrupt the judicial process. Rather, it was a simple error

by her counsel. Since only a brief delay occurred, which presented only minimal

prejudice to the defendants, and since, she argues, the district court incorrectly

calculated that the response was due on April 11th and not April 14th,

M s. Sizemore urges that its refusal to permit the late filing constituted an abuse of

discretion.

      As w e have already noted, M s. Sizemore has not preserved any appellate

challenge to the district court’s conclusion that the response was due on April

11th. M s. Sizemore ignored altogether the magistrate judge’s order amending the

deadline, to w hich she had never objected. She then came up with her own

                                          -9-
calculation of the deadline, and still failed to submit her motion for extension of

time in accordance with that deadline. “[I]t is well established that inadvertence,

ignorance of the rules, and mistakes construing the rules do not constitute

excusable neglect for purposes of Rule 6(b).” Quigley, 427 F.3d at 1238. W e

conclude that the district court did not abuse its discretion in denying the motion

for extension of time.

      3. District court’s grant of summary judgment

      In granting summary judgment for the defendants, the district court relied

on a local rule by which a party failing to timely respond to a motion is deemed to

have consented to the granting of the motion. See D.N.M .LR-Civ. 7.1(b). W e

have stated, however, that “a party’s failure to file a response to a summary

judgment motion is not, by itself, a sufficient basis on which to enter judgment

against the party. The district court must make the additional determination that

judgment for the moving party is ‘appropriate’ under Rule 56.” Reed v. Bennett,

312 F.3d 1190, 1195 (10th Cir. 2002). Alternatively, a district court may “appl[y]

. . . local rules to grant an uncontested summary judgment motion as a sanction,

requiring application of the sanction analysis specified in M eade v. Grubbs,

841 F.2d 1512 (10th Cir. 1988).” Id. at 1193.

      The district court did not grant summary judgment as a sanction; instead, it

made the additional determination we have required, that judgment for the

defendants w as appropriate under Rule 56 standards. M s. Sizemore attacks this

                                         -10-
grant of summary judgment on two grounds. She contends that even if her

response materials were excluded as untimely, defendants failed to demonstrate

their entitlement to summary judgment on her discrimination claims. Second, she

argues the district court’s order constituted a de facto sanction, requiring

application of the sanction analysis specified in M eade.

             a. Defendants’ entitlement to summary judgment

      “Summary judgment is appropriate only if the moving party demonstrates

that no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law.” Reed, 312 F.3d at 1195. W e review the district court’s grant of

summary judgment de novo, applying the same standard used by the district court.

Panis, 60 F.3d at 1489-90. M s. Sizemore cites only a single fact in the

defendants’ summary judgment submission that she contends should have

precluded the district court from entering summary judgment for the defendants.

This alleged fact, however, falls short of demonstrating a genuine issue of

material fact that would require this case to go to trial.

      M s. Sizemore’s employment was terminated for several reasons. One of

the reasons given was that she had failed to supervise a subordinate, who

allegedly abused the DOL’s leave policy on numerous occasions. Defendants

presented evidence that M s. Sizemore was informed of other employees’

suspicions about her subordinate’s abuses, but took little or no action to curtail

them. M s. Sizemore argues, however, that she was treated differently than her

                                         -11-
male supervisor, because he was not similarly terminated merely for failing to

supervise her. M s. Sizemore does not show that she was similarly situated to her

supervisor. There appear to be numerous differences in their conduct, including

the seriousness of M s. Sizemore’s violations of the leave policy as compared to

those of her subordinate, and the presence of numerous other policy violations on

which defendants relied in terminating her employment. She has not, therefore,

demonstrated a genuine issue of material fact that would preclude summary

judgment.

            b. De facto sanction

      Turning to her other argument, M s. Sizemore contends that since her late-

filed summary judgment response and accompanying evidentiary materials were

excluded from consideration, the district court’s summary judgment order

operated as a de facto sanction, but lacked the appropriate sanction findings. She

contends that under the burden-shifting scheme in M cDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), she had the burden of rebutting the employer’s

explanation of the reason she was fired, but that she could not do so unless her

evidence was considered. Hence, the practical effect of excluding late-filed

evidence essential to her case was an automatic “sanction” of summary judgment

in favor of the employer, which undercut the district court’s purported grant of

summary judgment on the merits.




                                        -12-
      The flaw in M s. Sizemore’s argument arises from her improper conflation

of evidentiary decisions taken by the district court with its merits analysis. The

district court refused to grant an extension of time for her to file her summary

judgment response and struck her untimely response. These evidentiary decisions

lay within the district court’s discretion, and did not, by themselves, implicate a

sanction analysis, even though the omitted evidence may have been essential to

M s. Sizemore’s case. See Reed, 312 F.3d at 1193 n.1 (analyzing separately

district court’s refusal to grant continuance to file summary judgment response

for abuse of discretion, notwithstanding district court’s simultaneous grant of

summary judgment due to plaintiff’s failure to respond, which operated as a

sanction). Cf. Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1288

(10th Cir. 2002) (stating district court’s refusal to extend time for filing evidence

due to excusable neglect is evidentiary decision, reviewed for abuse of discretion,

even where such evidence is essential to party’s case).

      In its merits analysis, the district court granted summary judgment based on

the materials it had before it. This action could have been considered a sanction,

implicating the M eade factors, only if the district court had failed to make the

further specific findings required by Fed.R. Civ. P. 56(c) to justify its action on

the merits. See Reed, 312 F.3d at 1193. As we have seen, however, the district

court performed its duties under Rule 56(c) and achieved a result that we have

affirm ed on de novo review .

                                         -13-
The judgment of the district court is AFFIRMED.

                                          Entered for the Court



                                          M ichael R. M urphy
                                          Circuit Judge




                               -14-
