                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 25, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    TONIA E. FISHER,

                Plaintiff-Appellant,

    v.                                                   No. 09-5046
                                            (D.C. No. 4:07-CV-00433-CVE-FHM)
    SOUTHWESTERN BELL                                    (N.D. Okla.)
    TELEPHONE COMPANY, a foreign
    for profit business corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and BALDOCK, Circuit Judges.



         Pro se plaintiff Tonia Fisher sued her former employer, Southwestern Bell

Telephone Company (SWBT), and a holding company, AT&T Inc., asserting

illegal discrimination and retaliation in violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and Title VII of the Civil



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17. The district

court granted summary judgment in favor of SWBT on all claims and dismissed

defendant AT&T Inc. for lack of personal jurisdiction. It also denied

Ms. Fisher’s motion to file additional authorities out of time, motion for leave to

file a third amended complaint, and motion to reconsider that issue. Ms. Fisher

now appeals these adverse rulings, along with the district court’s decisions on

discovery matters. We affirm.

      Ms. Fisher was employed by SWBT as a Customer Service Technician,

responsible for repairing and installing telephone lines and equipment.

A requirement for this position is the ability to climb non-step poles, and

company policy recommends the use of hooks for this activity. Ms. Fisher took a

short-term disability leave from August 2005 through August 2006, then worked

under temporary work-related restrictions until October 2006.

      After Ms. Fisher’s doctor lifted the restrictions, her supervisor told her that

she would be required to demonstrate climbing a pole using hooks. Ms. Fisher

responded that she had not used hooks in two years and had not used them to

perform her job in nine years. In light of this statement, management decided that

Ms. Fisher needed to re-take a course called New Employment Safety Training,

which would allow her to review the safe method of climbing a pole using hooks.

Ms. Fisher, however, felt this type of pole-climbing could be dangerous in her

physical condition and unnecessary to the performance of her job. Although she

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was informed that her refusal to attend would be considered insubordination,

Ms. Fisher did not report to the training class.

      At follow-up meetings, Ms. Fisher did not provide any medical information

that would have excused her from participating in the training. Instead, she

asserted that the requirement was discriminatory and prompted by her internal

discrimination complaints: a charge lodged in 2003 while on a three-month

period of unpaid suspension, a hotline call made after she was directed to

re-training, and a subsequent letter from her attorney. Ms. Fisher claimed her

refusal to attend the training amounted to protected opposition to illegal

employment discrimination. Ms. Fisher was suspended and then discharged for

insubordination.

      Ms. Fisher filed this suit, claiming disability and gender discrimination and

also retaliation for her earlier complaints. Her ADA claim is based on the theory

that SWBT perceived her as having a psychological impairment substantially

limiting the major life activities of being emotionally stable, thinking straight,

eating, and working. In appealing the district court’s disposition of her claims

and motions, Ms. Fisher raises several issues, with various subparts.

                            1. Dismissal of AT&T Inc.

      AT&T Inc., a Delaware holding company with its principal place of

business in Texas, filed a motion to dismiss under Fed. R. Civ. P. 12(b)(2) for

lack of personal jurisdiction. The district court granted the motion without

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holding an evidentiary hearing. We review this determination de novo, asking

whether the plaintiff made a prima facie showing of facts that, if true, support

jurisdiction over the defendants. Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1065

(10th Cir. 2007). We accept the plaintiff’s allegations as true if uncontradicted

by evidence from the defendants, and resolve evidentiary disputes in favor of

jurisdiction. Id. Oklahoma’s long-arm statute authorizes jurisdiction coextensive

with the Due Process Clause, so that personal jurisdiction exists if a defendant

has minimum contacts with Oklahoma. Intercon, Inc. v. Bell Atlantic Internet

Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000).

      AT&T Inc. presented affidavits declaring that it does not employ anyone in

Oklahoma, exercise control over SWBT’s operations, conduct business in

Oklahoma, or have any specific contact in Oklahoma related to Ms. Fisher’s

lawsuit. Ms. Fisher’s responsive evidence was that she had received a mailing

from AT&T Inc. at her Oklahoma home, that AT&T Inc.’s Chief Executive

Officer had accepted a speaking engagement in Oklahoma, and that AT&T Inc.

and SWBT had submitted a joint application to the Federal Communications

Commission. She also asserted that AT&T Inc. had a national presence. The

district court determined that Ms. Fisher’s evidence was insufficient to

demonstrate that AT&T Inc. had purposely directed its activities toward

Oklahoma. Therefore, it concluded that Ms. Fisher did not make a prima facie

showing that could support the exercise of personal jurisdiction over AT&T Inc.

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      None of Ms. Fisher’s arguments on appeal persuades us to reverse the

district court’s decision. Moreover, we conclude that the district court did not

abuse its broad discretion in denying Ms. Fisher the opportunity to conduct

jurisdictional discovery. Bell Helicopter Textron, Inc. v. HeliQwest Int’l, Ltd.,

385 F.3d 1291, 1298-99 (10th Cir. 2004).

                          2. Leave to Amend Complaint

      About a year after filing her complaint, Ms. Fisher sought leave to file a

third amended complaint to add a state-law tort claim. The district court

determined that the facts and the law supporting the proposed state-law claim

were known to her at the time she filed her initial complaint. It therefore denied

the motion to amend due to the lengthy delay without a reason. Later it denied

her motion to reconsider, again finding undue delay and also futility.

      Whether to permit an untimely amendment is generally a question entrusted

to the district court’s discretion. See Miller ex rel. S.M. v. Bd. of Educ. of

Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009). “An abuse of

discretion occurs when a judicial determination is arbitrary, capricious or

whimsical. It is not merely an error of law or judgment. . . .” United States v.

Wright, 826 F.2d 938, 943 (10th Cir. 1987). And “[i]t is well settled in this

circuit that untimeliness alone is a sufficient reason to deny leave to amend.”

Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Under the

applicable standard, we see no basis for reversing the district court’s rulings.

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                  3. Discovery Orders and Other Pretrial Rulings

         Ms. Fisher challenges the district court’s decision to affirm discovery

orders entered by magistrate judges. We review discovery rulings for abuse of

discretion. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 647 (10th Cir.

2008).

         Ms. Fisher’s primary contention is that the district court erred in allowing

SWBT access to her psychotherapy records. Jaffee v. Redmond, 518 U.S. 1,

12-13 (1996) holds there is a psychotherapist-patient privilege in federal cases.

But this “privilege is not absolute.” Doe v. Oberweis Dairy, 456 F.3d 704, 718

(7th Cir. 2006); see also Jaffee, 518 U.S. at 15, n.14 (“Like other testimonial

privileges, the patient may of course waive the protection.”). “Numerous courts

since Jaffee have concluded that, similar to attorney-client privilege that can be

waived when the client places the attorney’s representation at issue, a plaintiff

waives the psychotherapist-patient privilege by placing his or her medical

condition at issue.” Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)

(collecting cases).

         We agree with the district court that Ms. Fisher’s request for

emotional-distress damages placed her psychological state in issue and entitled

SWBT to discover her therapy records. We also see no abuse of discretion in the

district court’s denial of Ms. Fisher’s motion for additional discovery, motion for




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disclosure and recusal of SWBT’s in-house counsel, motion to strike SWBT’s

expert report, and motion to supplement her summary-judgment response.

                         4. Summary-Judgment Rulings

      We review the district court’s summary-judgment rulings de novo, “taking

the facts and the reasonable inferences to be drawn from them in the light most

favorable to the nonmoving party.” Trainor v. Apollo Metal Specialties, Inc.,

318 F.3d 976, 979 (10th Cir. 2002). Applying the same legal standard as the

district court, we will affirm “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).

      Because Ms. Fisher is proceeding pro se, we have construed her briefs

liberally and “have tried to discern the kernel of the issues she wishes to present

on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

Nevertheless, “[t]his liberal treatment is not without limits.” Kay v. Bemis,

500 F.3d 1214, 1218 (10th Cir. 2007). We do not “take on the responsibility of

serving as [her] attorney in constructing arguments and searching the record.”

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

Thus we do not address her inadequate arguments, such as the newly asserted

theory that the district court should have applied a mixed-motive analysis to her

claims.

                                         -7-
ADA Claim

      To survive summary judgment on her ADA claim that SWBT regarded her

as disabled, Ms. Fisher was required to present some evidence showing that

SWBT had “mistaken beliefs about [her] abilities.” Jones v. U.P.S., Inc.,

502 F.3d 1176, 1190 (10th Cir. 2007). SWBT must have “mistakenly believe[d]

that [she] has a physical impairment that substantially limits one or more major

life activities’” or “that an actual, nonlimiting impairment substantially limits one

or more major life activities.” Id. (quotation omitted).

      The district court’s entry of summary judgment is based on its

determination that Ms. Fisher produced no evidence showing that SWBT

perceived her as unable to perform any major life activity, including the ability to

be emotionally stable, think straight, eat, and work. We agree with the district

court’s evaluation of the evidence.

      On appeal, Ms. Fisher makes two arguments specific to her ADA claim.

First, she asserts that the district court failed to view her claim in a broad enough

context. It is apparent, however, that the district court reached its conclusion

only after reviewing the entire record. Second, Ms. Fisher argues that the district

court’s ruling did not take into account this court’s statement that “an employer

who is unable or unwilling to shed his or her stereotypic assumptions based on a

faulty or prejudiced perception of an employee’s abilities must be prepared to

accommodate the artificial limitations created by his or her own faulty

                                         -8-
perceptions.” Kelly v. Metallics W., 410 F.3d 670, 676 (10th Cir. 2005). This

directive, however, has no application here, where there is no indication that

SWBT perceived Ms. Fisher as disabled. The district court properly entered

summary judgment on the ADA claim.

Gender-Discrimination and Retaliation Claims

      Applying the burden-shifting scheme of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), to SWBT’s motion for summary judgment, the

district court concluded that Ms. Fisher established prima facie cases of gender

discrimination and retaliation. It further decided that SWBT proffered a

legitimate, nondiscriminatory reason for the termination--insubordination.

Describing the lack of support for Ms. Fisher’s allegations and SWBT’s evidence

that it applied a gender-neutral practice of requiring re-training after a period of

absence, the district court determined that Ms. Fisher had not established a

genuine issue of material fact on whether SWBT’s proffered reason was

pretextual. Accordingly, it concluded that SWBT was entitled to summary

judgment.

      Thus, the sole question on appeal is whether Ms. Fisher submitted

sufficient evidence of pretext to defeat the motion for summary judgment. To do

so, Ms. Fisher was required to produce evidence that SWBT’s non-discriminatory

reason is “unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441, 451

(10th Cir. 1995). This burden can be met with “evidence of such weaknesses,

                                         -9-
implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence.” Argo v. Blue Cross & Blue

Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir. 2006) (quotation omitted).

We examine “the facts as they appear to the person making the decision to

terminate plaintiff.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1231 (10th Cir. 2000).

      In this court, Ms. Fisher repeats her accusations of discrimination and

retaliation. “Unsupported conclusory allegations, however, do not create an issue

of fact.” Finstuen v. Crutcher, 496 F.3d 1139, 1144 (10th Cir. 2007) (quotation

omitted). Nothing in the record suggests that Ms. Fisher can establish pretext.

The district court properly granted summary judgment on Ms. Fisher’s

gender-discrimination and retaliation claims.

                         5. Denial of Postjudgment Relief

      Finally, Ms. Fisher asserts that the district court erred in denying her

motion for reconsideration of the district court’s summary-judgment decision,

repeating her earlier arguments. We review this decision for an abuse of

discretion. See Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222,

1228 (10th Cir. 2009). Thus, such “relief is appropriate only where the court has

misapprehended the facts, a party’s position, or the controlling law.” Id.

(quotation omitted). “[B]ecause we are affirming the district court’s grant of

                                         -10-
summary judgment under the broader de novo standard, we do not find that the

district court abused its discretion in denying the . . . motion for reconsideration.”

Id.

      SWBC’s motion to strike attachments to Ms. Fisher’s reply brief, which are

not part of the record on appeal, is GRANTED. Ms. Fisher’s motion to take

judicial notice of these attachments is DENIED. The judgment of the district

court is AFFIRMED.


                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




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