                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    KENNETH HENDRIX,

                  Plaintiff-Appellant,

    v.                                                   No. 01-3173
                                                  (D.C. No. 99-CV-4108-RDR)
    EMPLOYER’S REINSURANCE                                  (D. Kan.)
    CORPORATION,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before MURPHY , McKAY , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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-appellant Kenneth Hendrix brought this racial discrimination

complaint against defendant-appellee Employer’s Reinsurance Corporation (ERC)

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17. He now appeals from the district court’s orders denying his motion for

summary judgment and granting summary judgment in favor of ERC. We affirm.

      On October 7, 1997, Hendrix, a black male, filed an EEOC complaint with

the Kansas Human Rights Commission (KHRC), charging that ERC had

discriminated against him on the basis of his age and race by terminating his

employment.   1
                  The EEOC determined that there was reasonable cause to believe

that racial discrimination had occurred; however, it was unable to reach a

settlement with ERC. On April 14, 1999, KHRC issued a right to sue letter to

Hendrix.

      Hendrix thereafter filed a   pro se complaint charging age and race

discrimination. He later filed a one-paragraph motion for summary judgment on

his race discrimination claim, relying on the EEOC’s determination in his favor

and ERC’s alleged failure to provide requested discovery. The motion did not

contain a statement of undisputed facts and was not accompanied by a



1
     The evidence shows that Hendrix was never an employee of ERC; instead,
he worked as a temp at ERC for Robert Half Accountemps. As will be seen, once
Hendrix obtained counsel, the claim was correctly restated as a failure to hire
Hendrix for a permanent position.

                                          -2-
memorandum in support or any affidavits or other materials designed to show

Hendrix’s entitlement to summary judgment. The district court denied the motion

for summary judgment. Hendrix moved for rehearing, which the district court

also denied.

      The district court thereafter appointed counsel for Hendrix. Counsel filed

an amended complaint, dropping the allegation of age discrimination. The

amended complaint alleged that ERC had discriminated against Hendrix by failing

to hire him for certain permanent accounting positions, and by hiring white

employees to fill those positions instead. ERC filed its motion for summary

judgment, which the district court granted.

      We review the district court’s orders granting and denying summary

judgment de novo , applying the same standard as the district court.   VBF, Inc. v.

Chubb Group of Ins. Cos. , 263 F.3d 1226, 1230 (10th Cir. 2001). Summary

judgment is proper if the moving party shows “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). “When applying this standard, we view the evidence

and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.”    Scull v. New Mexico , 236 F.3d 588, 595 (10th Cir. 2000)

(quotation omitted).




                                           -3-
       In his first issue, Hendrix charges that the district court denied his motion

for summary judgment because he was unrepresented by counsel. Our          de novo

review of the record demonstrates that the district court properly denied the

motion because it did not comply with local rules; because ERC had responded

appropriately to Hendrix’s requested discovery; and because ERC demonstrated

that genuine issues of material fact remained. Pro se litigants must follow the

rules of procedure, including local rules.    Green v. Dorrell , 969 F.2d 915, 917

(10th Cir. 1992). Hendrix’s argument lacks merit.

       Hendrix next contends that the district court should have considered ERC’s

failure to hire him for positions that were not specifically mentioned in the EEOC

charge. The charge alleged discriminatory acts during the time period from

August 8 through August 29, 1997. In response to ERC’s motion for summary

judgment, Hendrix presented argument concerning an additional job with ERC for

which he was not selected in April 1997. The district court rejected this

argument, finding that Hendrix had failed to exhaust his administrative remedies

concerning ERC’s failure to hire him for this position.

       “A plaintiff must exhaust his administrative remedies before bringing suit

under Title VII.”   Aramburu v. Boeing Co. , 112 F.3d 1398, 1409 (10th Cir. 1997).

Even assuming that the April 1997 position was “reasonably related” to those

identified in the EEOC charge,     see id. , ERC was still entitled to summary


                                             -4-
judgment concerning its failure to hire Hendrix. As will be seen, Hendrix

presented no evidence to show that ERC’s stated, nondiscriminatory reasons for

failing to hire him were pretextual. This applies as much to the April 1997

position as it does to the position for which Hendrix applied in August 1997.

      In an effort to show pretext, Hendrix next points to an initial, favorable

work evaluation he received from Kyung Sook Lee, who stated he was doing

“excellent” work. R., doc. 66, Hendrix depo. at 16. Hendrix implies that this

evaluation shows that the employer’s stated reason for its failure to hire him, poor

work performance, was pretextual. ERC presented unrebutted evidence showing

that this favorable evaluation was made during Hendrix’s initial two-week

training period, and that his performance thereafter deteriorated to the point that

Ms. Lee felt she had to check Hendrix’s work more than was usual with other

temporary workers. There was also unrebutted evidence that Hendrix made many

mistakes in his work, causing ERC employees to have to do it over for him, and

that he did not ask for additional work when he had finished an assignment.

In sum, Hendrix failed to show that ERC’s stated reasons for not hiring him for

a permanent position were pretextual.




                                         -5-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




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