                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      July 3, 2013

                                      TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court


 CHRISTOPHER GILKEY,
               Plaintiff–Appellant,                          No. 13-3067
 v.                                                 (D.C. No. 6:11-CV-01369-JAR)
                                                               (D. Kan.)
 ADT SECURITY SERVICES, INC.,
               Defendant–Appellee.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



       After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Plaintiff Christopher Gilkey, proceeding pro se, appeals from the district court’s

order granting summary judgment for Defendant and denying summary judgment for

Plaintiff. Plaintiff filed an employment discrimination complaint against Defendant, his

former employer, alleging that Defendant’s refusal to rehire him after he resigned from



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
his position constituted both race discrimination and retaliation, in violation of Title VII.

After a period of discovery, Plaintiff filed a motion for summary judgment on both of his

claims. Defendant, in turn, filed a cross-motion for summary judgment. After reviewing

the briefing on both motions, the district court concluded Defendant was entitled to

summary judgment because Plaintiff failed to present sufficient evidence to establish a

prima facie case for either of his claims. Specifically, the district court concluded

Plaintiff failed to present evidence that he was qualified for the position in light of his

designation as “not eligible for rehire” and that he was rejected for the position under

circumstances giving rise to an inference of unlawful discrimination, as required to

establish a prima facie case of race discrimination. The district court then concluded

Plaintiff failed to present evidence that he engaged in a protected activity in 2009, and

failed to present evidence that his 2007 complaint, which Defendant conceded for

purposes of summary judgment was protected opposition to discrimination, was causally

connected to Defendant’s refusal to rehire him, as required to establish a prima facie case

of retaliation. Accordingly, the district court granted Defendant’s motion for summary

judgment and denied Plaintiff’s motion for summary judgment. Plaintiff now appeals.

       On appeal, Plaintiff appears to challenge the district court’s application of the

summary judgment standard, arguing that because he “met the initial [summary

judgment] burden, the burden then shift[ed] to [Defendant] to set forth specific facts

showing that there is a genuine issue for tr[ia]l” (Appellant’s Opening Br. at 6 (internal

quotation marks omitted)), yet Defendant did not do so (id. at 10). However, after a

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thorough review of the record on appeal, we see no error in the district court’s application

of the summary judgment standard or its consideration of the facts. Furthermore, we

agree with the district court that Plaintiff failed to present evidence satisfying elements

required to prove a prima facie case for each of his claims, and Defendant was therefore

entitled to summary judgment. In light of appellee<s response to the court<s show cause

order of June 10, 2013, volume two of the record on appeal shall remain under seal.

Accordingly, the judgment of the district court is AFFIRMED.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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