                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           APR 16 2004
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 DARIUS JUAN BLOOMER,
              Plaintiff - Appellant,               Nos. 02-6348 & 03-6002
 v.                                               (D.C. No. CIV-99-1486-F)
 UNITED PARCEL SERVICE, INC.,                             (W.D. Okla.)
 an Ohio corporation,
              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and HENRY, Circuit Judges.




      Appellant Darius Juan Bloomer, a former employee of Appellee United

Parcel Service, Inc., filed an action in the United States District Court for the

Western District of Oklahoma alleging claims pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981, for race

discrimination and retaliation. He also alleged claims under the Family and

Medical Leave Act, 29 U.S.C. § 2601, et seq., for failure to comply with the



      *
       This order and judgment is not binding precedent, except under the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.
FMLA and for interference with the exercise of his FMLA rights. He further

alleged a claim pursuant to the Oklahoma Worker’s Compensation Act, Okla.

Stat. tit. 85, § 5(A), for retaliatory discharge.

       The relevant facts are set forth in detail in the district court’s July 23, 2002,

Order. Appellant was hired by UPS in July 1988. At all times relevant to this

appeal, Appellant has been a member of Local 886 of the International

Brotherhood of Teamsters with his employment governed by a collective

bargaining agreement.

       In March 1995, Appellant was terminated for failure to report to work on

two consecutive days. The termination was later withdrawn. In December 1997,

Appellant was suspended for attendance problems. The suspension was later

reduced to a warning letter. In January 1998, Appellant was terminated for

attendance problems. The termination was later reduced to a one-day suspension.

In January 1999, Appellant was suspended for three days for attendance problems.

       In September 1997, Appellant was terminated for recklessness resulting in a

serious accident based on a July 1997 collision with a car making a left turn. The

accident injured both drivers and caused damage to both vehicles and a street

light. Appellant was released by his doctor to return to full duty on September 9,

1997. Appellee determined the accident to be avoidable. Pursuant to the

collective bargaining agreement, a driver could be discharged upon such a


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finding. The termination was subsequently reduced to a seventeen-day suspension

following a meeting between Local 886 and Appellant’s labor manager.

      In May 1999, Appellant was terminated for dishonesty pursuant to the

collective bargaining agreement. Appellant had made a C.O.D. delivery without

receiving payment from the customer but entered in his computer that he had

received payment. Appellant’s termination was reduced to a suspension of

approximately five weeks through a grievance procedure.

      Appellant filed two charges with the Equal Employment Opportunity

Commission. Appellant’s first charge was filed on January 5, 1998, and he

received a right-to-sue notice on February 19, 1998. In that charge, Appellant

complained about the September 1997 termination for recklessness resulting in a

serious accident. Appellant charged that he was discriminated against because of

his race and that he was retaliated against for filing internal EEO grievances.

Appellant filed his second charge on July 1, 1999, and received his right-to-sue

notice on August 27, 1999. This charge complained about the May 1999

termination for dishonesty. Appellant charged that he was discriminated against

because of his race and that he was retaliated against for filing the previous

EEOC charge.

      On May 19, 1998, Appellant, acting pro se, filed a lawsuit based on the

September 1997 termination. The complaint was later dismissed for failure to


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prosecute. Counsel for Appellant filed another lawsuit on May 21, 1998, with

similar allegations which was also dismissed for failure to prosecute.

      Appellant filed the current action pro se on September 28, 1999.

Appellant’s first amended complaint was filed by counsel. Appellee subsequently

filed for summary judgment on all claims. On July 23, 2002, the court granted in

part and denied in part Appellee’s motion for summary judgment leaving for trial

only the Title VII and § 1981 race discrimination and retaliation claims as to the

May 1999 termination for dishonesty. After the district court filed its July Order,

and in response to Appellee’s Motion in Limine, Appellant asserted that he had

pleaded a hostile work environment harassment claim. Appellant argued that,

pursuant to National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), all

evidence of discriminatory acts, including those relevant to his dismissed claims,

should be admitted at trial. In its August 12, 2002, Order on the Motion in

Limine, the district court rejected Appellant’s argument and held that Appellant

      has not stated a claim for hostile work environment harassment and . . .
      may not rely on the continuing violation doctrine in order to introduce
      evidence of or to pursue damages for time-barred acts of alleged
      discrimination or retaliation. Plaintiff’s discrimination and retaliation
      claims are based on independent and isolated events, allegedly committed
      by multiple persons occurring months or even years apart. Because there is
      not, and could not have been, any claim for hostile work environment
      harassment, plaintiff’s reliance on [Morgan] is misplaced.

See Aple. Supp. App., Vol. III, at 816-17.

      A jury found in favor of Appellee UPS. The district court granted

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Appellant’s motion to proceed in forma pauperis on appeal without prepayment of

fees but required that he pay for the cost of the transcript because the appeal did

not involve a “substantial question” as required by 28 U.S.C. § 753(f).

      The issues on appeal are whether the district court: (1) erred in

determining that Appellant failed to raise a hostile work environment harassment

claim pursuant to Title VII and/or 42 U.S.C. § 1981; (2) abused its discretion in

excluding evidence as irrelevant and potentially prejudicial pursuant to Appellee’s

Motion in Limine and at trial; (3) erred in failing to consider Appellant’s claims

on summary judgment using a direct evidence or mixed-motive analysis and in

failing to give a mixed-motive jury instruction; (4) erred in granting summary

judgment to Appellee on Appellant’s Oklahoma Worker’s Compensation Act

retaliation claim; and (5) erred in determining that this appeal did not involve a

substantial question which would provide Appellant with a free trial transcript. 2

      We note initially that Appellant’s brief is mostly a summary of existing

Supreme Court and Tenth Circuit precedent and does not provide cogent

arguments tying the legal authority to the facts of this case. We will not



      2
       In his Statement of Issues, Appellant appears to raise several additional
claims of error on appeal. See Aplt. Br. at 2-4. However, Appellant does not
provide any argument in his brief on these additional issues, and we cannot
determine the nature of alleged error relevant to these issues. Therefore, to the
extent that Appellant has raised additional issues on appeal, they are denied. See
Scott v. Hern, 216 F.3d 897, 910 n.7 (10th Cir. 2000).

                                         -5-
“manufacture a party’s argument on appeal when it has failed in its burden to

draw our attention to the error below.” Scott v. Hern, 216 F.3d 897, 910 n.7 (10th

Cir. 2000) (citations and internal quotations omitted). In order to overcome a

motion for summary judgment,

      [t]he nonmoving party must go beyond the pleadings and establish,
      through admissible evidence, that there is a genuine issue of material
      fact that must be resolved by the trier of fact. The mere existence of
      a scintilla of evidence in support of the plaintiff’s position will be
      insufficient; there must be evidence on which the jury could
      reasonably find for the plaintiff.

Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (internal

citations and quotations omitted). To the extent that Appellant provides argument

on appeal, there is no support in the record for his contentions.

      We first address whether the district court erred in determining that

Appellant failed to raise a hostile work environment harassment claim pursuant to

Title VII and/or 42 U.S.C. § 1981. We review de novo the district court’s grant

of partial summary judgment, applying the same legal standards used by the

district court. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.

2002). Under Fed. R. Civ. P. 56(c), summary judgment is appropriate when there

is no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. Id. “When applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Id. (citations omitted).

                                         -6-
      Appellant’s argument focuses on the district court’s alleged error in

deciding that Appellant failed to properly raise a hostile work environment

harassment claim in his Amended Complaint. However, Appellant misapprehends

the district court’s ruling. The court did not narrowly hold that Appellant did not

sufficiently plead a hostile work environment harassment claim. Instead, the

court held that Appellant’s hostile work environment harassment claim failed

because it was based on isolated events without connection in time, character, or

person. See Aple. Supp. App., Vol. III, at 816-17. The court stated that

      plaintiff has not stated a claim for hostile work environment
      harassment and . . . may not rely on the continuing violation doctrine
      in order to introduce evidence of or to pursue damages for time-
      barred acts of alleged discrimination or retaliation. Plaintiff’s
      discrimination and retaliation claims are based on independent and
      isolated events, allegedly committed by multiple persons occurring
      months or even years apart. . . . [T]here is not, and could not have
      been, any claim for hostile work environment harassment . . . .

Id.

      On appeal, Appellant has not pointed this court in the direction of any

evidence that would adequately support his hostile work environment theory.

Instead, Appellant provided detailed summaries of both Morgan and Boyer v.

Cordant Technologies, Inc., 316 F.3d 1137 (10th Cir. 2003), and bald assertions

that these cases support his hostile work environment harassment theory.

However, neither of these cases is helpful to Appellant’s position because they

only apply when there is a continuing pattern of severe or pervasive

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discrimination which Appellant has not shown in the instant case.

      In Morgan, the Supreme Court held that consideration of the entire scope of

a hostile work environment claim includes behavior which is outside the statutory

time period. 536 U.S. at 117-18. Applying Morgan, Boyer similarly held that

because “incidents comprising a hostile work environment are part of one

unlawful employment practice, the employer may be liable for all acts that are

part of this single claim.” Boyer, 316 F.3d at 1140. However, these broad

statements of the law have no applicability to the present case. Obviously, if

Appellant had adequately presented a hostile work environment harassment claim,

pursuant to Morgan, evidence relating to that claim would be admissible.

However, Appellant did not adequately allege a hostile work environment

harassment claim such that Morgan or Boyer would apply.

      To establish a prima facie case of hostile work environment harassment, a

plaintiff must show that “under the totality of the circumstances (1) the

harassment was pervasive or severe enough to alter the terms, conditions, or

privilege of employment, and (2) the harassment was racial or stemmed from

racial animus.” Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998)

(quoting Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)). A showing of

pervasiveness requires “more than a few isolated incidents of racial enmity.”

Bolden, 43 F.3d at 551 (citations and internal quotations omitted). A plaintiff


                                         -8-
must produce evidence to show that the workplace was “permeated with

discriminatory intimidation, ridicule, and insult . . . sufficiently severe or

pervasive to alter the conditions of [his] employment and create an abusive

working environment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

81 (1998).

      The record reflects that Appellant did not and cannot establish pervasive

and severe harassment such that the terms and conditions of his employment were

altered and abusive. The string of isolated acts relied on by Appellant involved

completely different allegations, conduct, and people, and occurred months or

years apart. Appellant’s reliance on these discrete acts does not show that “under

the totality of the circumstances (1) the harassment was pervasive or severe

enough to alter the terms, conditions, or privilege of employment, and (2) the

harassment was racial or stemmed from racial animus.” Witt, 136 F.3d at 1432.

At most, Appellant has made a showing of “a few isolated incidents of racial

enmity” insufficient to establish a hostile work environment claim. See Bolden,

43 F.3d at 551.

      We next address whether the district court abused its discretion in

excluding evidence pursuant to Appellee’s Motion in Limine and at trial. We

review evidentiary rulings for an abuse of discretion. Echo Acceptance Corp. v.

Household Retail Services, Inc., 267 F.3d 1068, 1087 (10th Cir. 2001).


                                           -9-
      To the extent we can decipher Appellant’s non-specific objections to the

exclusion of certain evidence relating to his hostile work environment harassment

claim and other incidents, we hold that the court did not abuse its discretion in

excluding the evidence. 3 Consistent with the Federal Rules of Evidence and Heno

v. Sprint/United Management Co., 208 F.3d 847 (10th Cir. 2000), the court

properly limited Appellant to presenting evidence of either a company policy

demonstrating racial animus or personal racial animus by individuals who were

directly involved in making the May 1999 termination decision. See Aplt. Supp.

App., Vol. III, at 937-39. Appellant did not allege that the same supervisors were

involved in any of the incidents or that the other events were somehow linked to

the May 1999 termination. See Heno, 208 F.3d at 856 (“anecdotal evidence of

discrimination should only be admitted if the prior incidences of alleged

discrimination can somehow be tied to the employment actions disputed in the

case at hand”) (internal quotations and citation omitted).

      Appellant also argues that the district court erred in failing to consider his

claims on summary judgment using a direct evidence or mixed-motive analysis



      3
       We note that the district court did not broadly prevent Appellant from
introducing all racial animus evidence in limine but instead reserved the right to
make certain decisions during the trial outside the presence of the jury. See Aplt.
Supp. App., Vol. III, at 817. Additionally, the district court was specifically
aware of the difficulty in making a general ruling on Appellant’s proffered
evidence in limine. See id. at 935.

                                         -10-
and in failing to give the jury a mixed-motive jury instruction. However, our

review of the record reveals that Appellant did not present direct evidence of

discrimination or retaliation and Appellant has not pointed to any direct evidence

in his brief. “[S]tatements of personal opinion, even when reflecting a personal

prejudice or bias, do not constitute direct evidence of discrimination.” Shorter v.

ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (citations omitted).

“Direct evidence is ‘[e]vidence, which if believed, proves [the] existence of [a]

fact in issue without inference or presumption.’” Id. (quoting Black’s Law

Dictionary 460 (6th ed.1990)). Because Appellant has not presented any direct

evidence of discrimination, we can find no error in the district court’s application

of the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting

framework.

      Appellant’s argument that the jury should have been given a mixed-motive

jury instruction pursuant to Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), is

similarly flawed. We review this contention for plain error because the objection

was not raised at trial. York v. American Telephone & Telegraph Co., 95 F.3d

948, 953 (10th Cir. 1996). First, Desert Palace was not the law at the time the

jury was instructed. Additionally, as we noted above, Appellant did not present

direct evidence or argue a mixed-motive theory so Desert Palace would not apply

even if it had been the law at the time the jury was instructed. Therefore, the


                                         -11-
district court did not plainly err in failing to give the jury a mixed-motive

instruction.

      We next address whether the district court erred in granting summary

judgment to Appellee on Mr. Bloomer’s Oklahoma Worker’s Compensation Act

retaliation claim. We review de novo a grant of summary judgment, applying the

same legal standards used by the district court. Garrett, 305 F.3d at 1216.

      Appellant argues that the court erred in granting summary judgment on his

Oklahoma Worker’s Compensation Act retaliation claim because he presented

evidence of a pattern of retaliatory discharges and suspensions arising from his

exercise of statutorily protected rights, see 85 Okla. Stat. §§ 5-7. We disagree.

To establish a prima facie case of retaliatory discharge pursuant to § 5(A), a

plaintiff must prove (1) employment, (2) an on-the-job injury, (3) receiving

treatment under circumstances which should put the employer on notice that

treatment has been rendered for a work-related injury, or that the employee

instituted or caused to be instituted, proceedings under the Act, and (4)

consequent termination. Buckner v. General Motors Corp., 760 P.2d 803, 806

(Okla. 1988).

      We agree with the district court that, while Appellant can establish the first

three elements, he cannot establish consequent termination. Appellant presented

no evidence that his 1997, 1998, or 1999 terminations were significantly


                                         -12-
motivated by his worker’s compensation claims. We adopt the district court’s

thorough analysis on this issue and hold that because Appellant did not prove a

prima facie case of retaliation, the district court did not err in dismissing this

claim.

         As a final matter, appellants proceeding in forma pauperis are not entitled

to a free trial transcript unless their appeal presents a substantial question. 28

U.S.C. § 753(f). Mr. Bloomer has failed to indicate what substantial question is

present in the instant appeal. Therefore, the district court did not err in

determining that this appeal did not involve a substantial question which would

provide Appellant with a free trial transcript.

         AFFIRMED.

                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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