                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 9, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    R EN E SAWA N IE M ER SWIN ,

                Plaintiff-Appellant,

    v.                                                    No. 06-5230
                                               (D.C. No. 05-CV-0436-CVE-FHM )
    THE W ILLIA M S COM PANIES, IN C.,                    (N.D. Okla.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




         Rene M erswin, appearing pro se, appeals the district court’s dismissal of

his complaint alleging that his former employer, The W illiams Companies, Inc.

(TW C), discriminated against him on the basis of race and national origin,

unlaw fully retaliated against him, and created a hostile w ork environment in

violation of 42 U.S.C. §§ 2000e through 2000e-17 and 42 U.S.C. § 1981. The



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court granted summary judgment in favor of TW C, and exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

      M r. M erswin identifies himself as a “black, African-American male” from

the country of Suriname. Aplt. Br. at 4. He was employed by TWC as a systems

analyst from June 1999 until July 2004 when TW C outsourced a portion of its

information technology (IT) department to IBM . Following M r. M ersw in’s

termination, he was hired temporarily by IBM until M arch of 2005.

      M r. M erswin’s chief complaint is that he suffered adverse employment

action when TW C failed to promote him to a higher grade level. He attempts to

bolster his complaint by alleging that he was forced to cross-train on an

application known as PV CA Tracker, while a Caucasian employee was permitted

to cross-train on his preferred application called Remedy Support. M r. M ersw in

contends that cross-training on PV CA Tracker disadvantaged him during the

transition to IBM and that when he complained of these purportedly

discriminatory acts, TW C retaliated by limiting his promotional opportunities and

creating a generally hostile w ork environment.

      M r. M erswin filed a discrimination claim with the Equal Employment

Opportunity Commission (EEOC) and then this action in the district court. The

district court, however, in a well-reasoned order, determined that TW C was

entitled to summary judgment because M r. M ersw in failed to make a prima facie

showing of discrimination on either his failure-to-promote claim or his retaliation

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claim. The court also ruled that M r. M ersw in’s evidence of a hostile work

environment was insufficient to establish a valid claim, and hence summary

judgment w as proper on that count as well.

      “W e review a grant of summary judgment de novo, applying the same legal

standards as the district court pursuant to Fed. R. Civ. P. 56 (c).” Dunbar v.

Jackson Hole M tn. Resort Corp., 392 F.3d 1145, 1147 (10th Cir. 2004).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. See id. In

determining whether there is a genuine issue as to any material fact, we examine

the evidence and “reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Id. at 1148.

      On appeal, M r. M ersw in argues that summary judgment was inappropriate

because he did, in fact, suffer adverse employment action and was subjected to a

hostile w ork environment. But our review of the district court’s order leads us to

conclude otherwise. The district court first ruled that his failure-to-promote claim

was unavailing because he did not suffer adverse employment action. The court

explained that there was no evidence that the position to which M r. M ersw in

referred was open, that TW C sought to promote any employee to that position, or

that he had even applied for the job. Further, the court discussed his allegations

of being forced to cross-train on an application he viewed as unfavorable, but

recognized that there was absolutely no evidence that he would have been

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retained either by TW C or IBM had he been permitted to work on Remedy

Support, especially since he w as already trained on that application. The court

added that even if TW C’s mandatory cross-training w ere sufficient to establish

adverse action, TW C had articulated a legitimate, non-discriminatory reason for

its policy: “By cross-training, [TW C] ensured that multiple employees were

proficient with respect to each application such that work would not be

compromised in case of an employee’s absence.” Aplt. A pp., Tab 67 at 14.

Consequently, the court ruled that summary judgment was proper on

M r. M erswin’s failure-to-promote claim.

      Next, the court explained that M r. M erswin’s retaliation claim likew ise

failed because although he had engaged in protected activity by filing an EEOC

complaint, he did not demonstrate that he suffered adverse employment action as

a result. The court noted that M r. M ersw in relied on the same evidence to support

his retaliation claim and reiterated that TWC’s act of assigning him to the PVCA

Tracker application and another employee to Remedy did not constitute adverse

action sufficient to sustain a claim of retaliation.

      Lastly, the court examined M r. M ersw in’s evidence of a hostile work

environment, including instances in which he was offered a completely full bottle

of water, taught “Oklahoma slang,” and given M cDonald’s toys for his children.

Id. at 4. The court also considered an incident in which his supervisor refused to

have fingerprints taken from a box that had been placed under his chair which

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contained the personal effects of a deceased co-worker. And the court accounted

for an e-mail that had been circulated to M r. M erswin and his co-workers relating

a story about a woman’s ill-founded fear of M ichael Jordan and Eddie M urphy.

The court addressed all this evidence, but concluded that it was insufficient to

establish a claim for a racially hostile work environment. The court reasoned that

the first anecdotes did not relate to race in any way, while the e-mail, “albeit

light-hearted, highlights the problems associated with racial stereotypes.”

Id. at 18. The court acknowledged that the e-mail could have made M r. M ersw in

feel uncomfortable, but ruled that his subjective belief was not enough to

establish a hostile w ork environment.

      W e agree with the district court’s thoughtful analysis. It was detailed,

accurate, and complete, leaving nothing for us to improve upon. Therefore,

having carefully reviewed the parties’ briefs, the record on appeal, and the

pertinent legal authority, we AFFIRM the district court’s judgment for

substantially the same reasons articulated in its order dated December 4, 2006.


                                                     Entered for the Court



                                                     M ichael R. M urphy
                                                     Circuit Judge




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