                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 26 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MARILYN E. EVANS,

                Plaintiff - Appellant,

    v.                                                    No. 03-5006
                                                    (D.C. No. 01-CV-920-C)
    FEDERAL EXPRESS                                    (N.D. Oklahoma)
    CORPORATION, sued as:
    Federal Express,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before HARTZ , BALDOCK , and McCONNELL , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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.
        Plaintiff Marilyn E. Evans, appearing     pro se , appeals from the district

court’s order entering summary judgment in favor of her former employer,

defendant Federal Express Corporation. The district court granted summary

judgment pursuant to N. Dist. Okla. Loc. R. 7.1.C, after plaintiff failed to file

a timely response to defendant’s motion for summary judgment. We affirm.

        Plaintiff, then represented by counsel, filed a complaint in January 2001,

alleging defendant failed to promote her based on racial discrimination in

violation of 42 U.S.C. § 2000e. The district court entered a scheduling order

setting July 1, 2002, as the discovery cutoff and September 16, 2002, as the

deadline for filing dispositive motions. Plaintiff did not submit her discovery

requests until June 11, 2002, too late for discovery to be completed within

the deadline. Defendant filed a motion for summary judgment on September 16,

2002.

        On September 20, 2002, plaintiff filed a motion to compel discovery. The

magistrate judge scheduled a hearing on plaintiff’s motion for October 11, 2002,

but plaintiff requested and received a postponement until October 17, 2002.

Neither plaintiff nor her counsel appeared at the October 17th hearing, however.

Plaintiff’s counsel informed defendant’s counsel the morning of the hearing that

she was having car trouble and would not be able to attend the hearing.

Defendant’s counsel, who had flown from Memphis to Tulsa for the hearing,


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offered to provide plaintiff’s counsel with transportation, but plaintiff’s counsel

then told him she could not attend the hearing because she had a sudden,

unexpected illness.

      Plaintiff also failed to file any response to defendant’s motion for summary

judgment. On October 21, 2002, the district court granted defendant’s motion for

summary judgment and dismissed plaintiff’s complaint with prejudice for failure

to follow Local Rule 7.1.C. Northern District of Oklahoma Local Rule 7.1.C

requires a party to respond to a motion within fifteen days and provides that

“[f]ailure to timely respond will authorize the court, in its discretion, to deem the

matter confessed, and enter the relief requested.”

      Plaintiff then filed a motion for reconsideration, asserting her counsel’s

belief that no response to the motion for summary judgment was due until the

district court had ruled on her pending motion to compel and discovery was

completed. She also alleged that dismissal was an inappropriately severe

sanction, citing Hancock v. City of Oklahoma City    , 857 F.2d 1394, 1396

(10th Cir. 1988).

      The district court denied the motion for reconsideration. It ruled that

plaintiff had failed to file any timely discovery requests, and, in any event,

discovery was completed on October 17, 2002, when plaintiff and her counsel

failed to appear at the hearing scheduled on her motion to compel. The district


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court then addressed the three factors this court has held are relevant to

determining the propriety of sanctioning a party for failing to respond to a motion

within the applicable time limit: (1) the degree of actual prejudice to the

opposing party; (2) the amount of interference with the judicial process; and

(3) the culpability of the litigant.     Hancock , 857 F.2d at 1396. It found that the

actual prejudice to the defendant did not, in itself, justify the grant of summary

judgment, nor did the plaintiff’s culpability, since she was likely unaware of her

counsel’s conduct. Nevertheless, the district court concluded that the amount of

interference with the judicial process did warrant the severe sanction of dismissal.

       This court recently held 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.”       Reed v. Bennett , 312 F.3d 1190, 1195 (10th Cir.

2002); see also Murray v. City of Tahlequah           , 312 F.3d 1196 (10th Cir. 2002)

(considering federal local rule of the Eastern District of Oklahoma). “The district

court must make the additional determination that judgment for the moving party

is appropriate under Rule 56.”         Id. We held that, although the district court could

consider the motion to be uncontested for lack of a timely response, it could not

grant summary judgment under Rule 56(c) unless the moving party had met its

initial burden of demonstrating that no material issues of fact remain for trial         and

demonstrated its entitlement to judgment as a matter of law.          Reed , 312 F.3d


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at 1194-95. By failing to respond to the motion for summary judgment, however,

the nonmoving party waives his “right to respond or to controvert the facts

asserted in the summary judgment motion,”           id. at 1195, but such waiver does

“not relieve the court of its duty to make the specific determinations required by

Fed. R. Civ. P. 56(c),”   id. at 1196.

       Alternatively, we held that, if a court desired to grant summary judgment as

a sanction, it must consider those factors set forth in     Hancock , 857 F.2d at 1396.

Id. at 1195-96. In this case, the district court did not have the benefit of our    Reed

and Murray decisions, as both were decided after the district court granted

summary judgment. Thus, the district court did not address the motion for

summary judgment on the merits. It did, however, consider and address the

Hancock factors.

       We cannot conclude the court’s order of dismissal was an abuse of its

discretion. Without any justification, plaintiff’s counsel failed to initiate timely

discovery, failed to respond to the motion for summary judgment, prejudiced

defendant and the court with her attempt to compel untimely discovery, then

delayed, and inexcusably failed to appear at, the hearing on her own motion to

compel. Parties choose their counsel and generally are bound by their acts.         See

Link v. Wabash R.R. Co. , 370 U.S. 626, 633-34 (1962);         Sec. Nat’l Bank v. John

Deere Co. , 927 F.2d 519, 520 (10th Cir. 1991) (“[I]t is a fundamental principle of


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our representational legal system . . . that a party acts through chosen counsel,

whose carelessness or ignorance, therefore, generally does not constitute grounds

for relief for his client.”). Under these circumstances, the court’s decision to

deem defendant’s asserted facts admitted was not arbitrary or unreasonable.

       Moreover, having reviewed the record        de novo , see Diaz v. Paul J. Kennedy

Law Firm , 289 F.3d 671, 674 (10th Cir. 2002), we conclude that summary

judgment was properly granted. Defendant presented evidence that the promotion

plaintiff claimed to have been denied was not a promotion and that plaintiff did

not even apply for the position in question. Because plaintiff did not submit any

admissible evidence to refute the evidence presented by defendant, she could

not show an adverse employment action and, therefore, failed to establish

a prima facie case of failure to promote.     See Amro v. Boeing Co. , 232 F.3d 790,

796 (10th Cir. 2000) (describing elements of a      prima facie case of race

discrimination for failure to promote);     see also Anderson v. Liberty Lobby, Inc   .,

477 U.S. 242, 256 (1986) (“[A] party opposing a properly supported motion for

summary judgment may not rest upon mere allegations . . ., but must set forth

specific facts showing that there is a genuine issue for trial.”) (quotations

omitted).




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      Accordingly, the judgment of the district court is AFFIRMED. The

mandate shall issue forthwith.


                                                Entered for the Court



                                                Michael W. McConnell
                                                Circuit Judge




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