                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      January 23, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    DAV ID ALAN COO PER,

                Plaintiff-Appellant,

    v.                                                   No. 06-5114
                                                (D.C. No. 05-CV-236-JHP-PJC)
    AM ERICAN AIRLIN ES, IN C.,                          (N.D. Okla.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




         Plaintiff David Alan Cooper appeals from the district court’s entry of

summary judgment in favor defendant American Airlines, Inc. (American). W e

have jurisdiction under 28 U.S.C. § 1291 and affirm.

         M r. Cooper started working for American in 1986 at its Tulsa, Oklahoma,

maintenance base and describes himself as “a member of American’s black




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
minority work force.” Aplt. Opening Br. at 1, ¶ 1. He has w orked primarily as a

mechanic. The Transport W orkers U nion of America (TW U) represents

mechanics in their labor relations with American at the Tulsa base, but

M r. Cooper supports a rival union, the Aircraft M echanics Fraternal Association

(AM FA). On September 9, 2003, American gave M r. Cooper and others

permission to distribute AM FA flyers and other materials at the base as part of

efforts to garner enough support to force an election to determine which of the

tw o unions would represent the mechanics at the base.

      W hile M r. Cooper was handing out the AM FA flyers, Robert Jackson, who

at the time was American’s M anaging Director of Base M aintenance, informed

M r. Cooper that the TW U was not happy about the distribution of the literature.

Shortly thereafter, another American employee, Randy M cDonald, who is a white

male and at the time was the president of TW U, physically confronted M r. Cooper

and tried to wrestle away the flyers, shouting that M r. Cooper was destroying

TW U membership. He also began “pressing and bumping and humping”

M r. Cooper’s leg. Aplt. A pp., Vol. II at 328, Cooper D epo. at 81:25.

M r. Jackson intervened in an effort to get M r. M cDonald to stop his conduct. A

scuffle then ensued during which M r. M cDonald swung at and hit M r. Jackson.

M r. Jackson backed away and M r. M cDonald resumed his confrontation of

M r. Cooper, which included making “African gibberish” noises along with




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another A merican employee, id. at 345, Cooper Depo. at 99:3. According to

M r. Cooper, other American employees chanted derogatory racial slurs.

      Base security then arrived accompanied by Carmine Romano, the Vice

President of Base M aintenance. M r. Romano spoke with M r. M cDonald and

M r. Jackson. According to M r. Cooper, M r. M cDonald then resumed his conduct

until M r. Romano intervened again, after which the incident came to a conclusion.

      M r. Cooper complained about the incident to American’s human resources

department, and eventually American issued M r. M cDonald a “first-step

advisory,” which apparently is some type of warning, but did not otherwise

discipline him. M r. Cooper did not receive any discipline as a result of the

incident. He continued working in the same position without any change in

assignments or responsibilities and without any further harassment by

M r. M cDonald. He did, however, file this lawsuit, asserting a disparate treatment

claim under Title VII of the Civil Rights A ct of 1964, 42 U.S.C. §§ 2000e to

2000e-17, premised on his view that because M r. M cDonald is white, American

did not conduct a sufficient investigation of the incident or impose sufficient

discipline on M r. M cDonald. 1 He further asserted a violation of his civil rights

under 42 U.S.C. § 1981 to the extent American allegedly denied him an equal




1
      Title VII makes it unlawful for an employer to discriminate against any
individual based on race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2(a)(1).

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right to contract for the union representation of his choice. 2 Each party filed a

motion for summary judgment. The district court denied M r. Cooper’s motion

and granted A merican’s motion. M r. Cooper appeals.

      “O n cross-motions for summary judgment, our review of the summary

judgment record is de novo and we must view the inferences to be drawn from

affidavits, attached exhibits and depositions in the light most favorable to the

party that did not prevail,” in this case, M r. Cooper. Allen v. Sybase, Inc.,

468 F.3d 642, 649 (10th Cir. 2006) (quotation omitted). 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 .” Fed. R. Civ. P. 56(c).

      In order to survive summary judgment in Title VII and § 1981 cases under

the familiar burden-shifting framework established by M cDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), a plaintiff first must establish the elements of a

prima facie case. See English v. Colo. Dep’t of Corr., 248 F.3d 1002, 1008

(10th Cir. 2001) (applying M cDonnell Douglas to both Title VII and § 1981




2
        In relevant part, “[s]ection 1981 prohibits racial discrimination in ‘the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.’” Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995)
(footnote omitted) (quoting 42 U.S.C. § 1981(b)).

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claims). The district court concluded that M r. Cooper had not met this burden

with regard to any of his claims. As to his disparate treatment claim, the court

explained that M r. Cooper’s dissatisfaction with American’s efforts to investigate

the incident and punish M r. M cDonald did not constitute an adverse employment

action, which is one element of the prima facie case for such a claim, see Trujillo

v. Univ. of Colo. Health Scis. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). The

court reasoned that American’s efforts had no effect on M r. Cooper’s employment

status and found that the disparate treatment claim bordered on frivolous.

      Although M r. Cooper did not assert a hostile w ork environment claim in his

complaint, the district court considered his summary judgment argument that the

conduct of which he complained rose to that level. In rejecting that claim, the

court first stated that whether the harassment was based on or motivated by race

was “thin at best,” Aplt. App., Vol. II at 454, particularly in view of the

underlying union dispute. Second, the court determined that the harassment did

not affect a term or condition of M r. Cooper’s employment and did not constitute

the “‘steady barrage of opprobrious racial comment’ as would offend Title VII.”

Id. at 455 (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.

1981)). A nd third, considering whether American “‘knew or should have know n

about the conduct and failed to stop it,’” see id. (quoting Hollins v. Delta

Airlines, 238 F.3d 1255, 1258 (10th Cir. 2001) (further citation omitted)), the




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court determined that American had not been negligent but had acted reasonably

in responding to the incident.

      W e agree and affirm the district court’s disposition of both of M r. Cooper’s

Title VII claims for substantially the same reasons stated in the district court’s

April 27, 2006, order and opinion. The court addressed each issue appropriately,

reviewed all the evidence and granted all reasonable inferences from it in the light

most favorable to M r. Cooper, and reached the correct conclusions.

      To establish a prima facie case of discrimination under § 1981, M r. Cooper

must show that (i) he “is a member of a protected class”; (ii) American “had the

intent to discriminate on the basis of race”; and (iii) “the discrimination interfered

with a protected activity as defined in § 1981.” Ham pton v. Dillard D ep’t Stores,

Inc., 247 F.3d 1091, 1102 (10th Cir. 2001). As the district court recognized,

M r. Cooper admitted that he did not know of a single mechanic who did not sign

a card to force an election between the two unions as a result of the incident.

Accordingly, even assuming that M r. M cDonald’s conduct can be attributed to

American, M r. Cooper failed to establish any interference with a protected

activity as defined in § 1981 as a result of either the incident, American’s




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investigation of it, or American’s decision to give M r. M cDonald no discipline

other than issuing the “first step advisory,” and the claim fails.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      M onroe G. M cKay
                                                      Circuit Judge




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