Steiner v. Concentra Inc., 10th Cir. (2006)

F I L E D
United States Court of Appeals

Tenth Circuit
UNITED STATES CO URT O F APPEALS
FO R TH E TENTH CIRCUIT
August 31, 2006

Elisabeth A. Shumaker
Clerk of Court
ELIZABETH STEINER,
Plaintiff-Appellant,
v.
CONCENTRA INC., also known as
Concentra, also known as Concentra
M edical Centers,
No. 05-1496
(D.C. No. 03-CV -2293-EW N-OES)
(D . Colo.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.
Elizabeth Steiner, proceeding pro se, appeals from the district courts
dismissal of her case against her former employer, Concentra Inc., and various
other individuals and business entities. She argues that in entering a dismissal
with prejudice as a sanction for her repeated defiance of court orders, the district
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
court committed various errors of law and also demonstrated a general bias
against pro se litigants. W e have jurisdiction under 28 U.S.C. 1291 and affirm.
Background
From July 2000 to November 2002, Dr. Steiner, a Colorado physician, was
employed by Concentra Inc., a medical-care provider that contracts w ith corporate
customers to deliver medical services to the customers employees. During
her tenure with Concentra, Dr. Steiner perceived ethical problems in the
Concentra-customer relationships; deficiencies in the treatment of patients;
illegalities in the release of patients medical records to customers; racial, ethnic,
age, and gender discrimination against Concentra employees; and the existence of
mold in a D enver clinic. She expressed her concerns to Concentra managers,
colleagues, patients, patients family members, and customers.
Dr. Steiner was demoted from her position as medical director of a
Concentra clinic and then discharged. She filed with the EEOC claims of
retaliatory and discriminatory discharge. According to Dr. Steiner, she had been
subjected to violations of the A ge D iscrimination in Employment Act (ADEA),
29 U.S.C. 621-634; Title VII of the C ivil Rights Act of 1964 (Title VII),
42 U.S.C. 2000e to 2000e-16c; and the Family M edical Leave A ct (FM LA),
29 U.S.C. 2612-19.
On November 17, 2003, Dr. Steiner brought this suit in federal court, filing
a 29-page complaint naming 17 defendants: Concentra, individual Concentra
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administrators, two customer corporations, and individual customer managers.

The complaint alleged claims of wrongful discharge in violation of public policy,
relying on provisions of the Colorado W orkers Compensation Act, Colo. Rev.
Stat. 8-40-101 to 8-47-209 and the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), 42 U.S.C. 1320d-5 to d-6; discharge in
violation of the ADEA; intentional infliction of emotional distress; civil
conspiracy; and breach of contract. She also expressed her intent to file an
amended complaint adding Title VII and FM LA claims. It was D r. Steiners
belief that these claims could not be written into the complaint at the time of the
filing of the original complaint because the EEOC process has a different
timetable for their deadlines. R., Doc. 64 at 1. Defendants filed motions to
dismiss on various grounds.
The matter was referred to a magistrate judge under 28 U.S.C. 636(b).
At an initial scheduling conference the magistrate judge reflected on the difficulty
of proceeding pro se in an employment case and commented that his preliminary
review of the complaint suggested that several defendants should be dismissed.
Dr. Steiner took offense at the magistrate judges remarks and filed a motion for
recusal of the magistrate judge.
In M ay 2004 the EEOC issued a right-to-sue letter on Dr. Steiners Title
VII charge. Dr. Steiner moved to amend her complaint to add Title VII and
FM LA claims and also to correct any perceived deficiencies in the pleadings,
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but she did not tender a proposed complaint. R., Doc. 64 at 4. On August 6 the
magistrate judge recommended dismissing all parties except Concentra and
granting Dr. Steiner permission to file an amended complaint solely against
Concentra realleging her age-discrimination claim. If Dr. Steiner wished to
amend the complaint further to present any new claim encompassed by a
right-to-sue-letter, she was to file an appropriate motion to amend, accompanied
by a tendered complaint. In a separate order the magistrate judge denied the
recusal motion.
Concerned about meeting the 90-day filing deadline triggered by the
right-to-sue letter, Dr. Steiner tendered a lengthy amended complaint before she
received copies of the magistrate judges rulings. Also, when she received the
August 6 recommendation, she filed her objections. These filings began
Dr. Steiners pattern of attaching a multiplicity of exhibits to her submissions,
such as excerpts from the records of other cases against Concentra, e-mails from
workers compensation officials, affidavits from former Concentra employees,
and printouts from presentations on H IPAA privacy provisions.
The magistrate judge struck the amended complaint as improper because
his recommendation was still pending before the district court. Dr. Steiner
objected to this result. On September 17, 2004, the district court adopted the
magistrate judges recommendation to dismiss all defendants other than
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Concentra. 1 The court also granted her 11 days to file an amended complaint in
compliance with the magistrate judges proposed restrictions.
Dr. Steiner did not accede to the district courts order. Instead, she
petitioned this court for relief in the nature of mandamus. After this court denied
her petition, she attempted to file an appeal. Because her case had not been fully
adjudicated, this court directed her to the district court for certification of an
appeal for immediate disposition, in accordance with Fed. R. Civ. P. 54(b).
The district court denied Dr. Steiners request for Rule 54(b) certification
and her alternative motion for reconsideration of its earlier order. Noting that
Dr. Steiner ha[d] done nothing which was ordered and that she was tying the
case in more and more procedural knots, R., Doc. 97 at 1-2, the district court
again ordered Dr. Steiner to file an amended complaint in conformity with its
previous decision. It warned her that [if] she fail[ed] to do so within an
additional 11 days, it would dismiss what remains of [her] case, with prejudice.
Id. at 2.
Dr. Steiner filed her second amended complaint within the district courts
time frame but outside the bounds of its instructions. The complaint named the
original array of defendants (minus one individual customer manager, plus
In adopting the magistrate judges recommendation, the district court

dismissed one of these defendants under Fed. R. Civ. P. 12(b)(2) for lack of
personal jurisdiction. The others were dismissed under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief can be granted.
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another Concentra-affiliated entity). She expanded the introductory section,

rearranged all her previous claims, added Title VII and FM LA claims, and
incorporated 55 pages of attached exhibits. Concentra filed a motion to strike or
dismiss the complaint.
At the hearing on the motion, the magistrate judge struck the second
amended complaint for failure to comply with previous court orders. He gave
D r. Steiner one more opportunity to file a short and plain complaint. He
specifically instructed her to name only Concentra as a defendant and to make
only two claims, age discrimination and wrongful termination in violation of
public policy (which is how she couched her AD EA, Title VII, and FM LA
retaliation claims). The magistrate judge also told her not to file any exhibits
except the EEOCs notice of right to sue. During the course of the hearing, the
magistrate judge again advised Dr. Steiner to retain an attorney.
Two weeks later Dr. Steiner filed a M otion Directed to the Judge Only to
Reconsider the M agistrates Order Striking the Plaintiffs Second Amended
Complaint with New M aterial Presented. R., Doc. 112. Along with numerous
other exhibits, she attached a proposed third amended complaint. That document
stated that she hereby incorporates, references and retains, into this . . .
absolutely every w ord, num bered and unnum bered paragraph, claim, prayer
for relief, and Exhibit in her Second Am ended Complaint. Id. (unnumbered
and untabbed exhibit).
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The district court promptly ruled on Dr. Steiners filing. Stating that
[t]his is a case where enough is enough, that [p]laintiff did nothing which
was ordered, and that the second amended complaint was flagrant in its
non-compliance with previous orders of the court, the court dismissed the
case with prejudice. Id., Doc. 115 at 1-2. As the district court put it,
[Dr. Steiner] has vexatiously and frivolously multiplied the
proceedings. Her actions have prejudiced the defendant by causing
delay and significant attorney fees. She has interfered with and
delayed the judicial process and caused needless expenditure of
judicial resources. Her actions have been willful, intentional,
persistent, and contemptuous. She has been warned. The ultimate
sanction of dismissal with prejudice is merited.
Id. at 2-3.
Discussion
Dr. Steiner now appeals the dismissal of her case against Concentra. 2
Although she raises arguments on the merits of her HIPA A and FM LA claims, the
dispositive issue is whether the district court properly imposed dismissal as a
sanction for her disregard of court orders.
In the statement of issues in her principal appellate brief, Dr. Steiner

concentrates on Concentras liability and makes no mention of the defendants
dismissed in the district courts order of September 17, 2004. Her reply brief
refers to four of these defendants in connection with HIPA A and [her] claim for
wrongful d[is]charge in violation against this public policy. Reply Br. at 10.
W e will not address issues raised for the first time in a reply brief. See Stump v.
Gates, 211 F.3d 527, 533 (10th Cir. 2000) (stating reasons why [t]his court does
not ordinarily review issues raised for the first time in a reply brief).
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A district court may dismiss a case for failure to comply with [the Federal
Rules of Civil Procedure] or any order of court, and the dismissal operates as
an adjudication upon the merits. Fed. R. Civ. P. 41(b).
But dismissal or other final disposition of a partys claim is a severe
sanction reserved for the extreme case, and is only appropriate w here
a lesser sanction would not serve the ends of justice. In applying
such a sanction, the district court must consider: (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. Only
when these aggravating factors outweigh the judicial systems strong
predisposition to resolve cases on their merits is outright dismissal
with prejudice an appropriate sanction.
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (internal citations,
quotation marks, and alterations omitted). If a party appears pro se, the court
should carefully assess whether it might appropriately impose some sanction other
than dismissal, so that the party does not unknowingly lose its right of access to
the courts because of a technical violation. Id.
The above analysis is highly fact specific, so the district court is in a far
better position than this Court to conduct it. Id. at 1196. This court reviews
dismissals under Rule 41(b) for abuse of discretion. See Gripe v. City of Enid,
312 F.3d 1184, 1188 (10th Cir. 2002).
In evaluating Dr. Steiners claims against Concentra, the district court
discussed and applied the three listed factors. It concluded that, even after she
was warned, Dr. Steiner took willful and contemptuous actions that prejudiced
Concentra by causing delay and needless expense, and she also interfered with the
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judicial process. Our review of the record confirms the district courts
conclusions. Dr. Steiner repeatedly refused to comply with clear court orders to
eliminate a multiplicity of claims, extra parties, excess verbiage, and irrelevant
exhibits. She also delayed and disrupted the judicial process by twice
inappropriately seeking interlocutory relief from this court. Dr. Steiners pro se
status does not excuse this type of conduct. See Ogden v. San Juan County, 32
F.3d 452, 455 (10th Cir. 1994) (pro se litigants must comply with the
fundamental requirements of the Federal Rules of Civil and Appellate
Procedure).
W e also note that nothing in the record suggests any basis for questioning
the magistrate judges impartiality. In recommending consultation with an
attorney experienced in employment law , the magistrate judge was simply
providing prudent advice.
The district court did not abuse its discretion in dismissing Dr. Steiners
case. A FFIR ME D.
Entered for the Court
Harris L Hartz
Circuit Judge
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F I L E D

United States Court of Appeals

August 31, 2006

OR D ER AND JUDGM ENT *

Before HA RTZ, A ND ER SO N, and TYM KOVICH, Circuit Judges.

administrators, two customer corporations, and individual customer managers.

In adopting the magistrate judges recommendation, the district court

another Concentra-affiliated entity). She expanded the introductory section,

In the statement of issues in her principal appellate brief, Dr. Steiner

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