                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 5 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    STEVEN TAYLOR,

                Plaintiff-Appellant,

    v.                                                  No. 02-3302
                                                 (D.C. No. 01-CV-2228-GTV)
    CRAMER, INC.,                                          (D. Kan.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , HENRY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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 Steven Taylor appeals from an order of the district court granting

defendant’s motion for summary judgment in this Title VII action. We affirm.

      Mr. Taylor, an African-American, was employed by defendant for almost

two years. He was terminated after an altercation between him and another

African-American employee after an investigation. 1 Mr. Taylor appealed the

decision through the union’s collective bargaining agreement arbitration

procedure, which determined that Mr. Taylor’s termination was for just and

proper cause. Mr. Taylor then filed this action in district court. In his complaint,

Mr. Taylor, proceeding pro se, alleged his termination was   based on his race. He

further contended he was falsely accused by a white female employee of sexual

harassment. He claimed Cramer gave credence to her allegation while refusing to

give credence to his denial and, further, he was not permitted to defend against

the charge.

      The district court granted summary judgment to Cramer, holding that

Cramer had produced a legitimate, nondiscriminatory reason for terminating

Mr. Taylor, which he had not shown was pretextual. The court also noted that

Mr. Taylor had stipulated in the pre-trial order that his race was not a factor in

determining whether to terminate him, a stipulation that was fatal to his claim.




1
      The co-worker was also terminated for his part in the altercation.

                                           -2-
      On appeal, Mr. Taylor argues his termination was based on an unfounded

accusation of sexual harassment made by a white employee. He contends Cramer

did not investigate that charge, but rather accepted the accusation as true. He

admits he was dismissed for another infraction, but maintains that the sexual

harassment charge was erroneously considered in the arbitration hearing.

      “We review a grant of summary judgment de novo and apply the same

legal standard used by the district court under Fed. R. Civ. P. 56(c).” Timmons

v. White, 314 F.3d 1229, 1232 (10th Cir. 2003). Rule 56(c) provides that

summary judgment is appropriate “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 a judgment as a matter of law.”

      In the pre-trial order, Mr. Taylor stipulated that his race was not a factor

Cramer considered in terminating him because of the altercation between him and

the other employee. He agreed that Cramer considered his short tenure of less

than two years with the company and his misconduct in the altercation. But, he

maintained that “the information that Cramer gained during its investigation of

the [altercation] that Taylor allegedly has sexually harassed” a white female

co-employee should not have been considered. Rec. doc. 35 at 2-3.




                                         -3-
      The record supports the district court’s holding that Mr. Taylor did not

present evidence sufficient to show that Cramer’s reasons for discharging him

were pretextual.   See, e.g. , Kendrick v. Penske Transp. Servs., Inc.   , 220 F.3d

1220, 1229 (10th Cir. 2000) (setting forth burden-shifting scheme). The record

does not support Mr. Taylor’s statement that he was not permitted to rebut the

testimony showing sexual harassment.       See, e.g. , Rec. doc. 25, ex. A at 95-96

(testifying that he never performed any of the three acts allegedly showing sexual

harassment); id. ex. D at 3 (“Grievant denied the sexual harassment allegations.”).

      The arbitrator determined that Mr. Taylor’s testimony was not credible

regarding the sexual harassment misconduct allegations. Mr. Taylor was

terminated after the work-place confrontation with the other employee. Cramer

asserted that the termination was justified because Mr. Taylor had violated two of

the rules of conduct for employees. Further, both employees were terminated for

their part in the altercation. The harassment issues which arose during the

investigation did not provide the primary reason for Mr. Taylor’s termination, but

rather provided additional support. Mr. Taylor presented no evidence that Cramer

refused to investigate the sexual harassment charges because the female employee

was white and Mr. Taylor is black.




                                            -4-
      The judgment of the United States District Court for the District of Kansas

is AFFIRMED for substantially the reasons stated in its order of July 3, 2002.

The mandate shall issue forthwith.


                                                   Entered for the Court



                                                   Stephanie K. Seymour
                                                   Circuit Judge




                                        -5-
