                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                             July 8, 2008
                         UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                     TENTH CIRCUIT



 CECILE DENISE COLEMAN,

           Plaintiff-Appellant,
 v.                                                            No. 07-3177
 BLUE CROSS BLUE SHIELD OF                            (D.C. No. 05-CV-4149-JAR)
 KANSAS, INC.,                                                (D. Kansas)

           Defendant-Appellee.



                                  ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and LUCERO, Circuit Judges.


       Cecile Coleman (Plaintiff) appeals the district court’s dismissal of claims arising

from her termination as an employee of Blue Cross Blue Shield of Kansas (Blue Cross).

Plaintiff alleges (1) retaliation under Kansas’s workers’ compensation statute; (2)

interference under the Family Medical Leave Act (FMLA); (3) retaliation under the

FMLA; (4) intentional discrimination under the Americans with Disabilities Act (ADA);

and (5) retaliation under the ADA. The district court found Plaintiff’s response to Blue



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
Cross’s motion for summary judgment deficient, and granted summary judgment in favor

of Blue Cross. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

                                               I

       Plaintiff commenced this action in December 2005, and after the completion of

discovery, Blue Cross moved for summary judgment. Blue Cross’s summary judgment

motion included a list of ninety-one factual allegations, each supported by a citation to

specific evidence in the record. Plaintiff’s response to that motion included a reply to

each of those ninety-one allegations, but failed to cite to the record in support her contrary

factual averments in all but three instances. Plaintiff did attach her sixteen page affidavit

to her response. Her response made a general reference to her affidavit as providing a

response to Blue Cross’s statement of facts by stating, “[m]y answer to defendant’s

statement of alleged facts is incorporated by reference herein.” Coleman Summ. J. Aff. ¶

6. But as regards defendant’s statement of facts, Plaintiff’s response did not include any

specific citations to specific points in the affidavit, and made only a general reference to

the affidavit, saying “[a]ll responses to defendant’s alleged statement of facts were

provided by Ms. Coleman under oath as indicated in the attached affidavit.” Pl.’s Br.

Summ. J. 2.

       Blue Cross argued in its reply brief that Plaintiff’s statement of facts failed to

comply with the court’s local rules of practice in that it was essentially not responsive to

the facts asserted by Blue Cross. Blue Cross argued that because Plaintiff did not cite to

specific evidence in her responses to Blue Cross’s statement of facts, the district court

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should disregard Plaintiff’s factual averments and accept its factual allegations as true.

Blue Cross also argued that Plaintiff’s affidavit included inadmissible statements of

hearsay and opinion, and often did not reflect the first person perceptions of Plaintiff. It

suggested that to the extent the district court considered the affidavit, it should disregard

those portions constituting inadmissible evidence. Blue Cross also contended that

Plaintiff’s affidavit contradicted aspects of her prior deposition testimony, and should

therefore be treated as a “sham” affidavit and disregarded.

       Plaintiff moved to amend her response, submitting a proposed amended response

that attempted to cure the defects identified by Blue Cross.1 After briefing on the issue of

whether to allow the amendment, the district court denied Plaintiff’s motion to amend her

response. The district court treated the motion to amend as a motion to file out of time,

which the court may grant only upon a showing of excusable neglect. The court

concluded that Plaintiff had failed to establish excusable neglect and denied Plaintiff’s

motion to amend.

       The district court then addressed the specific defects in Plaintiff’s original

response. The court agreed with Blue Cross that Plaintiff had failed to comply with the

local rules of practice. As a result, the court refused to credit her responses to Blue

Cross’s statement of facts, with the exception of the three instances where she did comply

with the local rule by supporting her allegations with a citation to the record. The court

       1
        The district court’s opinion indicates that many of these defects were not cured
by the proposed amended response. Order Granting Mot. Summ. J., May 16, 2007, at 8-
9.

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then ruled that to the extent it would consider Plaintiff’s affidavit, it would disregard

those averments which relied upon inadmissible evidence and those which contradicted

her prior deposition testimony so as to amount to a “sham” affidavit. The district court

then granted summary judgment in favor of Blue Cross on all claims.

                                              II.

       This court reviews the district court’s grant of a motion for summary judgment de

novo, viewing the disputed issues of fact in the light most favorable to the non-moving

party. Clark v. Edmunds, 513 F.3d 1219, 1221-22 (10th Cir. 2008).

       As an initial matter, Plaintiff does not adequately challenge the district court’s

denial of her motion to amend. See Aplt. Br. at 25-28. Her arguments deal exclusively

with whether the affidavit attached to her initial response to Blue Cross’s motion was

admissible. She offers no legal or factual support for her argument that the district court

erred in denying her motion to amend. As a result, we must conclude that she has waived

any challenge to the court’s denial of her motion to amend. See Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the

opening brief are waived.”). By waiving this argument, we only consider Plaintiff’s

original response to Blue Cross’s motion for summary judgment in reviewing the district

court’s grant of summary judgment.

       Plaintiff’s response to Blue Cross’s motion for summary judgment fails to comply

with either Local Rule of Civil Procedure 56.1 for the District of Kansas, or the basic

requirements of summary judgment practice in the federal courts. Local Rule 56.1

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provides that

       (1) A memorandum in opposition to a motion for summary judgment shall
       begin with a section that contains a concise statement of material facts as to
       which the party contends a genuine issue exists. Each fact in dispute shall
       be numbered by paragraph, shall refer with particularity to those portions of
       the record upon which the opposing party relies, and, if applicable, shall
       state the number of movant’s fact that is disputed.
       (2) If the party opposing summary judgment relies on any facts not
       contained in movant’s memorandum, that party shall set forth each
       additional fact in a separately numbered paragraph, supported by references
       to the record, in a manner required by subsection (a) above. All material
       facts set forth in this statement of the non-moving party shall be deemed
       admitted for the purpose of summary judgment unless specifically
       controverted by the reply of the moving party.

D. Kan. R. Civ. P. 56.1(b). Plaintiff’s response does include numbered paragraphs

corresponding to Blue Cross’s statement of facts. But only three of those ninety-one

paragraphs comply with the requirement that any fact in the moving party’s statement that

the non-moving party wishes to contradict include a citation to the record supporting their

alternative view of the facts. See Pl.’s Br. Summ. J. at ¶ 57, 68, 77.

       Plaintiff does not dispute that her original response did not comply with the local

rule. She instead argues that her affidavit, as well as several other documents attached to

her response to Blue Cross’s motion for summary judgment, should be considered

regardless and, if considered, we should conclude that she has raised questions of material

fact sufficient to withstand summary judgment. Plaintiff’s response does mention her

affidavit, but it does so only generally. In a single sentence preceding Plaintiff’s response

to each of the ninety-one numbered paragraphs provided by Blue Cross in its statement of

facts, the memorandum provides “[a]ll responses to defendant’s alleged statement of facts


                                              5
were provided by Ms. Coleman under oath as indicated in the attached affidavit.” Pl.’s

Br. Summ. J. 2. At no point does the response specifically cite a particular part of the

affidavit, or any other evidence for that matter, as a source of Plaintiff’s contrary factual

allegation.

       By citing to the affidavit in this general way, Plaintiff has failed to comply with the

requirement that a memorandum opposing summary judgment “shall refer with

particularity to those portions of the record upon which the opposing party relies.” D.

Kan R. Civ. P. 56.1(b) (emphasis added). As such, while Plaintiff correctly notes that a

party opposing summary judgment may rely on an affidavit attached to their

memorandum, Plaintiff’s failure to properly reference specific points in the affidavit as

support for each of her allegations is a legitimate grounds for its exclusion.

       We agree with the district court that it is not the court’s responsibility “to conduct

a fishing expedition of plaintiff’s affidavit or any other record evidence in order to

support the assertions made in her response.” Order Granting Mot. Summ. J., May 16,

2007, at 11. Faced with pleadings that did not comply with either the local practice rule

or summary judgment practice in general, the district court was correct to admit all facts

asserted in Blue Cross’s summary judgment motion “that are not controverted by a

readily identifiable portion of the record.” Id. This approach is consistent with Cross v.

Home Depot, where this court held that “it is the responding party’s burden [at summary

judgment] to ensure that the factual dispute is portrayed with particularity, without . . .

depending on the trial court to conduct its own search of the record.” 390 F.3d 1283,


                                              6
1290 (10th Cir. 2004) (quoting Downes v. Beach, 587 F.2d 469, 472 (10th Cir. 1978)).

As noted by the district court, Blue Cross “has properly supported its motion for summary

judgment with affidavits, deposition testimony, and other admissible evidence. In

response, defendant has failed to controvert the facts asserted in defendant’s motion.”

Order Granting Mot. Summ. J., May 16, 2007, at 13. As a result of this deficiency, we

proceed in the same manner as the district court, and “consider[] only whether [Blue

Cross] is entitled to summary judgment as a matter of law, based on the undisputed facts

set forth in its motion.” Id.

                                           III.

       Given Plaintiff’s failure to provide an adequate response brief, the facts as

described by Blue Cross in its motion for summary judgment are accepted as true for

purposes of summary judgment. This court then views those facts in the light most

favorable to Plaintiff, as the non-moving party. The disputed issues of fact appearing in

paragraphs 57, 68, and 77 of Blue Cross’s motion are also construed in favor of Plaintiff,

having been adequately supported by a reference to the record.

       In presenting her arguments on appeal, Plaintiff relies exclusively on documents

attached to her response to summary judgment that the court did not admit and her

inadmissible affidavit. In addition, a number of the facts accepted as true from Blue

Cross’s motion for summary judgment directly refute the merits of Plaintiff’s claims. As

Plaintiff has failed to support her arguments with facts supported by admissible evidence,

we must affirm.


                                              7
       1) Kansas Workers’ Compensation Claim

       Plaintiff first brings a retaliation claim pursuant to Kansas’s workers’

compensation statute, alleging that Blue Cross fired her for exercising her rights under the

Act. In making this claim, she relies primarily on an e-mail chain between her superiors

discussing the status of her employment and the number of workers’ compensation claims

she had made. Plaintiff did attach this evidence to her response to Blue Cross’s motion

for summary judgment, but we cannot consider it because Plaintiff failed to cite to it in

her response to Blue Cross’s statement of facts. We therefore affirm the district court’s

grant of summary judgment, as facts from Blue Cross’s motion for summary judgment,

which we now must accept as true, make clear Plaintiff was fired for cause, and not as an

act of retaliation.

       2) FMLA Claims

       Plaintiff brings two claims pursuant to the FMLA. Her first FMLA claim alleges

that her supervisor illegally interfered with her right to FMLA leave. In support of her

interference claim, Plaintiff cites a note taken by an unnamed employee of Blue Cross

indicating that her supervisor wished to fire her in April 2004 after her next deficient

performance report. Plaintiff argues the FMLA was violated because her supervisor’s

hostility towards her created a “powerful disincentive” to using leave, in violation of the

statute. See 29 CFR § 825.220(b). She also cites her affidavit in claiming that she

requested to work at a reduced rate, and Blue Cross refused in violation of the FMLA.

See 29 U.S.C. §2612(a)(1)(D). Neither piece of evidence was properly cited in Plaintiff’s


                                              8
response to Blue Cross’s statement of facts. Uncontroverted facts in Blue Cross’s motion

for summary judgment establish that Blue Cross approved nearly every FMLA request

Plaintiff made, and that Blue Cross fired Plaintiff for cause, rather than her repeated

FMLA requests.

       Plaintiff also claims that Blue Cross fired her in retaliation for her use of FMLA

leave. See 29 U.S.C. § 2615(a)(2). Plaintiff does not cite any specific evidence

establishing a causal connection between her firing and her use of FMLA leave. She

appears to rest her argument primarily on the e-mail chain that supports her Kansas

workers’ compensation claim, which, as discussed previously, is among the documents

attached to her response to the motion for summary judgment, but not properly cited to

controvert the facts alleged by Blue Cross. In addition, the uncontroverted facts in Blue

Cross’s motion for summary judgment establish that Blue Cross fired Plaintiff for cause.

Accordingly, we must affirm the district court’s finding that “[p]laintiff does not explain,

or point to evidence that would create a genuine issue of material fact about whether

plaintiff was terminated because of her August 2004 request for intermittent leave.”

Order Granting Mot. Summ. J., May 16, 2007, at 31.

       3) ADA Claims

       Plaintiff also asserts ADA claims, alleging that she is disabled under the statute

and Blue Cross discriminated against her by firing her because of her disability. In order

to establish a prima facie case of ADA discrimination, she must establish that (1) she is a

disabled person as defined by the ADA; (2) she is qualified, with or without reasonable


                                              9
accommodation to perform the essential functions of the job held or desired; and (3) she

suffered discrimination by an employer or prospective employer. Bones v. Honeywell,

Int’l, Inc., 366 F.3d 869, 877-78 (10th Cir. 2004). The district court found that Plaintiff

failed to support her allegation that she is disabled with sufficient evidence. We agree

with the district court’s view and affirm.

       AFFIRMED.

                                                  Entered for the Court,


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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