James Roberts, Jr. v. Associated Wholesale Grocers, Inc.

37 F.3d 1510 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. James ROBERTS, Jr., Plaintiff-Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., Defendant-Appellee. No. 93-3327. United States Court of Appeals, Tenth Circuit. Oct. 12, 1994. Before MOORE, ANDERSON, and KELLY, Circuit Judges. ORDER AND JUDGMENT1 — 1 — 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); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. — 2 — James Roberts, Jr. appeals an adverse summary judgment dismissing his action against his former employer, Associated Wholesale Grocers, Inc. ("AG"), in which Roberts alleged racial harassment and discriminatory discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.2000e-2. He also appeals the district court's award of costs and, in essence, moves for reconsideration of our previous denial of his motion for the appointment of counsel on appeal. We affirm. — 3 — We review de novo whether AG is entitled to summary judgment, Durham v. Xerox Corp., 18 F.3d 836, 838 (10th Cir.1994), cert. denied No. 93-1996, 1994 WL 272965 (Oct. 3, 1994), and affirm the summary judgment unless "the evidence, interpreted favorably to the plaintiff, could persuade a reasonable jury that the employer had discriminated against the plaintiff.' " MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1115, 1121-22 (10th Cir.1991) (quoting Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir.1989)). "[S]ummary judgment will not lie if the dispute about a material fact is genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Fed.R.Civ.P. 56(c). — 4 — With respect to the merits, we have carefully reviewed the record, and affirm the judgment of the district court for substantially the same reasons as are set forth in the court's Memorandum and Order dated September 14, 1993. After review, we likewise affirm the district court's award of costs, see United States Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1245 (10th Cir.1988) (award of costs is within the sound discretion of the district court). Roberts' renewed argument respecting an appointment of counsel on appeal is meritless. — 5 — AFFIRMED. Footnotes [1] 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 the court's General Order filed November 29, 1993. 151 F.R.D. 470