Timmerman v. U.S. Bank, N.A.

• Decision Date: 27 April 2007
• Docket Number: No. 06-1185.,06-1185.
• Citation: 483 F.3d 1106
• Parties: Linda A. TIMMERMAN, Plaintiff-Appellant, v. U.S. BANK, N.A., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

483 F.3d 1106

Linda A. TIMMERMAN, Plaintiff-Appellant, v. U.S. BANK, N.A., Defendant-Appellee.

No. 06-1185.

United States Court of Appeals, Tenth Circuit.

April 27, 2007.

Mari A. Newman, (Darold W. Killmer and Sara J. Rich, with her on the briefs), Killmer, Lane & Newman, L.L.P., Denver, CO, for Plaintiff-Appellant.

Christine K. Lamb (and Thomas D. LeLand, on the brief), Hale, Friesen, L.L.P., Denver, CO, for Defendant-Appellee.

Before KELLY, ALARCÓN,^* and LUCERO, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Linda A. Timmerman was terminated from her position as branch manager at U.S. Bank after bank management discovered that she had refunded at least $1,099 worth of overdraft fees to two subordinates' bank accounts. In response, Ms. Timmerman brought sex and age discrimination claims against U.S. Bank pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act of 1967 ("ADEA"). After U.S. Bank brought several state law counterclaims against Ms. Timmerman, she amended her complaint to add an abuse of process claim against U.S. Bank under state law, retaliation claims against U.S. Bank under both Title VII and the ADEA, and conspiracy claims against U.S. Bank under 42 U.S.C. § 1985(2). Following discovery, the district court granted U.S. Bank's motion for summary judgment as to each of Ms. Timmerman's federal claims and refused to exercise supplemental jurisdiction over the parties' remaining state law claims. See Timmerman v. U.S. Bank, No. 04-CV-01903, 2006 WL 894894, at *1 (D.Colo. Mar. 31, 2006). This appeal followed. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm the district court's grant of summary judgment.

Background

Ms. Timmerman began her career in 1988 at U.S. Bank's predecessor company, Bank Western, as a part-time teller. By 1997, Ms. Timmerman had attained the position of retail market manager, a position in which she was responsible for managing (with co-worker Chad Royle) several bank branches and supervising the branch managers at those locations. In 2001, Trish Johnson became the northern Colorado district manager to whom Ms. Timmerman reported. That same year, during the course of a post-acquisition restructuring at U.S. Bank, the position of retail market manager, Ms. Timmerman's position, was re-titled. As a result of the changes, both Ms. Timmerman and her male co-worker were demoted to the position of branch manager.

Ms. Timmerman continued in the position of branch manager until April 30, 2003 when her employment with U.S. Bank was terminated. At the time of her termination, Ms. Timmerman was fifty-two years old. As part of corporate security, U.S. Bank runs quarterly checks on fee reversals in its employees' accounts and automatically generates a report for fee reversals in excess of $100. According to U.S. Bank, it fired Ms. Timmerman because, during the review period from November 2002 to January 2003, she refunded thirty-one overdraft charges, totaling $1,099, to two coworkers' accounts in violation of company policy. Ms. Timmerman does not dispute that she made the refunds, but claims instead that she was not aware the refunds were made in contravention of company policy, that she was only looking out for the financial interests of her co-employees, and that she did not think the refunds cost U.S. Bank any money.

Shortly after her termination, Ms. Timmerman brought suit against U.S. Bank, alleging sex and age discrimination in violation of Title VII and the ADEA. During the course of discovery, Ms. Timmerman admitted that, as branch manager, she had inherited an internal "party fund" account and had partially funded that account using bank fees, including coin counting and notary fees. In deposition testimony, Ms. Timmerman also revealed that, subsequent to her termination, she removed $480 dollars from the "party fund" and deposited it into a personal account at another bank. Shortly after these admissions, U.S. Bank sought and was granted leave to assert state law counterclaims against Ms. Timmerman for civil theft, conversion, unjust enrichment, conspiracy, aiding and abetting a breach of fiduciary duty, and fraudulent misrepresentation. In response to U.S. Bank's counterclaims, Ms. Timmerman sought and was granted leave to amend her complaint to add claims for retaliation under Title VII and the ADEA, abuse of process, and conspiracy to violate her civil rights in violation of 42 U.S.C. § 1985(2).

U.S. Bank next moved for summary judgment as to all of Ms. Timmerman's claims along with its own claim against Ms. Timmerman for civil theft. The district court granted U.S. Bank's motion as to each of Ms. Timmerman's federal claims and declined to exercise supplemental jurisdiction over both parties' remaining state law claims. In so doing, the district court imposed a twenty-page limit on the length of both parties' summary judgment briefs. On appeal, Ms. Timmerman argues: (1) that the district court abused its discretion in limiting the length of the parties' summary judgment briefs to twenty pages; (2) that the district court erred in granting summary judgment to U.S. Bank on her sex and age discrimination claims because she brought forth sufficient evidence to demonstrate that U.S. Bank's asserted legitimate reason for her termination is pretextual; (3) that the district court erred in granting summary judgment to U.S. Bank on her Title VII and ADEA retaliation claims; and (4) that the district court erred in granting summary judgment to U.S. Bank on her 42 U.S.C. § 1985(2) claims.

Discussion

I. The District Court's Twenty-Page Limit on Summary Judgment Briefs

Ms. Timmerman contends that the district court committed reversible error when it denied her request to submit a response brief to U.S. Bank's motion for summary judgment that exceeded the district court's self-imposed twenty-page limit. Ms. Timmerman maintains that the "20-page limitation, as applied to this particular case, prevented a full (or even adequate) recitation of the facts and legal arguments necessary to effectively combat the summary judgment motion." Aplt. Br. at 42-43. The district court's refusal to allow Ms. Timmerman additional pages of briefing is best characterized as a "supervision of litigation" decision, which we review for an abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 559 n. 1, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006).

When there is no federal rule pertaining to a particular subject or issue, federal judges may regulate the practice of law in their courts "in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules of the district." Fed.R.Civ.P. 83(b). Here, Ms. Timmerman does not argue that the district court's self-imposed twenty-page limitation is on its face inconsistent with federal law. Moreover, no federal rule, including Fed.R.Civ.P. 56, dictates the number of pages to be permitted litigants in a response brief to a summary judgment motion. And the local rules of the District of Colorado are similarly silent regarding page limitations on such briefs. See D. Colo. L. Civ. R. 56.1. Ms. Timmerman's primary complaint about the district court's page limitation is that she was unable to present "further and more detailed information" regarding her claims, and that it led to the dismissal of her case due to insufficient evidence or argument. Aplt. Br. at 42-43.

The only specific evidence that Ms. Timmerman claims she would have been able to present to the district court in the absence of its page limitation is evidence that U.S. Bank knew of the "party fund," that Ms. Timmerman had inherited the fund from a predecessor, and that the "party fund" was funded through various sources. See Aplt. Br. at 57 n. 10. A review of Ms. Timmerman's amended response to U.S. Bank's motion for summary judgment, which fully complied with the district court's page limitation, reveals that Ms. Timmerman indeed presented all of this evidence to the district court, albeit in a footnote, and we presume it was considered. See Aplt. App. at 587-88 n. 11. Moreover, the district court's twenty-page limitation also applied to U.S. Bank's summary judgment briefs, and therefore, Ms. Timmerman was given twenty pages of briefing in order to respond to twenty pages of argument.

To be sure, one value implicit in Fed. R.Civ.P. 56 is that each party to a summary judgment motion, both moving and non-moving, be given an adequate opportunity to present argument and evidence supporting its respective position. See Fed.R.Civ.P. 56(f); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We can imagine a case where a page limitation (even one set at twenty pages) would be an abuse of discretion, and so district courts should remain flexible in the application of such a limitation. Nonetheless, Ms. Timmerman has not demonstrated that the district court's twenty-page limitation, in this case, rises to the level of an abuse of discretion.

II. Summary Judgment as to Ms. Timmerman's Federal Claims

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 725 (10th Cir.2006). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c).

A. Title VII and ADEA Sex and Age Discrimination Claims

Ms. Timmerman alleges that she was terminated from her branch manager position at U.S. Bank because she is a woman over forty years of age. She claims that her manager, Trish Johnson, preferred...