Reese v. Owens-Corning, 10th Cir. (2000)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
FOR THE TENTH CIRCUIT
JUL 12 2000
PATRICK FISHER
Clerk
WILLIAM E. REESE,
Plaintiff-Appellant,
v.
OWENS-CORNING FIBERGLASS
CORPORATION,
No. 99-3196
(D.C. No. 96-CV-2048)
(D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before BRORBY , ANDERSON , and MURPHY , 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This order and judgment is not binding precedent, except under the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 William E. Reese appeals the district courts entry of summary

judgment in favor of defendant Owens Corning Fiberglas Corp., on his
employment discrimination claims brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17, and the Americans with
Disabilities Act (ADA), 42 U.S.C. 12101 to 12213. We affirm.
Plaintiff began working for defendant in 1976. In November 1991, he was
injured in a non-work related accident. After approximately three years of sick
leave, plaintiff sought to return to work. Because he could not provide a full
medical release, he was sent to a work-hardening program. Plaintiff returned to
work in February 1995, but was not permitted to accrue departmental seniority for
the time he was on leave. He filed a grievance challenging this decision, which
was granted, and his departmental seniority was modified to reflect the time he
spent on sick leave. In October 1995, plaintiff filed a discrimination charge with
the Equal Employment Opportunity Commission (EEOC), alleging he was sent to
the work hardening program and denied seniority based on his race. The EEOC
dismissed the charge and issued a right to sue letter. In January 1996, plaintiff
filed a federal lawsuit, but did not serve defendant with the complaint until May
1996.
On January 26, 1996, plaintiff again sought sick leave for a non-work
related injury, which was granted, and later extended through February 20, 1996.
-2-
Thereafter, plaintiff refused to sign a release for his employer to contact his
doctor, and failed to provide information verifying his need for sick leave.
Plaintiff was terminated on March 19, 1996 for excessive unexcused absences.
Plaintiff sued his employer under Title VII and the ADA, alleging racial
and handicap discrimination and retaliation. Between March 15, 1996 and
January 11, 1999, five different attorneys were appointed to represent plaintiff,
but were subsequently granted leave to withdraw. On October 7, 1998, the
district court granted summary judgment to defendant on some of plaintiffs
claims, and on May 20, 1999, the court granted summary judgment in defendants
favor on the remaining claims.
Plaintiff appeals the judgment pro se. Arguing that his attorneys did not
represent him adequately in the trial court, plaintiff seeks appointment of an
attorney and an opportunity to present his case. This argument is essentially an
allegation of ineffective assistance of counsel, which is not a valid ground for
appeal in a civil case.
See MacCuish v. United States , 844 F.2d 733, 735-36
(10th Cir. 1988). [A]n argument that ineffective assistance of counsel should
relieve [a party] of an adverse judgment confuses [a] civil case with a Sixth
Amendment based claim for the re-trial of a criminal case.
Id. at 735 (quotation
omitted). Because there is no constitutional right to counsel in a civil case,
see
id. , the alleged incompetence of plaintiffs attorneys does not provide a basis for
-3-
reversing the summary judgments,
see id. at 735-36. As plaintiff has not
presented any other arguments demonstrating that the summary judgments were
improper, the district courts decision must be affirmed.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Wade Brorby
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE TENTH CIRCUIT

Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff William E. Reese appeals the district courts entry of summary

See MacCuish v. United States , 844 F.2d 733, 735-36

Id. at 735 (quotation

omitted). Because there is no constitutional right to counsel in a civil case,

reversing the summary judgments,

see id. at 735-36. As plaintiff has not

Entered for the Court

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