                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1754
                                   ___________

Ricky Rodgers,                          *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Maco Management Co., Inc.; Janet        *
Milam, in her individual and official   *
capacity, Property Manager; Jason       *      [UNPUBLISHED]
Maddox, in his individual and official *
capacity, Manager; Shelia Cobb, in her *
individual and official capacity,       *
Assistant Property Manager,             *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: February 22, 2007
                                Filed: February 27, 2007
                                 ___________

Before RILEY, MAGILL, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       Ricky Rodgers appeals the district court’s1 adverse grant of summary judgment
in his suit against his former employer, Maco Management Co., Inc. (Maco), and


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
several Maco employees (collectively, defendants), alleging race and sex
discrimination under Title VII and violation of his Fourteenth Amendment due
process rights. We review the district court’s grant of summary judgment de novo,
viewing the evidence in the light most favorable to Rodgers. See Kratzer v. Rockwell
Collins, Inc., 398 F.3d 1040, 1043 (8th Cir. 2005) (standard of review).

       We conclude that the district court properly dismissed Rodgers’s race
discrimination claim because he failed to raise such a claim in his administrative
charge. See Shannon v. Ford Motor Co., 72 F.3d 678, 684-86 (8th Cir. 1996)
(although pro se charges of discrimination are construed liberally, court may not
create claim not made administratively; rejecting discrimination claim as
administratively unexhausted where claim was not related to administrative charge).
We also agree with the district court that Rodgers did not present a triable sex
discrimination claim, despite his disparate treatment theory, because Maco proffered
a non-discriminatory reason for dismissing Rodgers (his refusal to perform work) and
Rodgers failed to create a genuine issue of fact as to whether that proffered reason was
a pretext for sex discrimination: the female employee with whom he compared
himself was not similarly situated in all relevant respects. See Pope v. ESA Servs.,
Inc., 406 F.3d 1001, 1009 (8th Cir. 2005) (pretext may be demonstrated with evidence
that similarly situated employees outside of protected class received more favorable
treatment). To the extent Rodgers maintains that it was unfair for Maco to terminate
him for refusing to perform independent contract work beyond his regular
employment duties, we note that unfair treatment per se does not give rise to a Title
VII cause of action. See Johnson v. Ready Mixed Concrete Co., 424 F.3d 806, 812
(8th Cir. 2005) (while plaintiff may present “a sympathetic situation in which the
employer’s judgment in imposing discipline may appear poor or erroneous to
outsiders,” court’s role in Title VII case is to consider whether adverse employment
action was based upon protected factor, not whether action was unduly harsh).




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       Finally, because Maco is undisputedly a private, non-governmental employer,
we hold that the district court correctly dismissed Rodgers’s Fourteenth Amendment
due process claim. See Jackson v. Metro. Edison Co., 419 U.S. 345, 349-50 (1974)
(private action not subject to the Fourteenth Amendment’s due process protections);
United States v. Reyes, 87 F.3d 676, 680 (5th Cir. 1996) (“[T]he governmental
employer is subject to certain constitutional due process restrictions in terminating
employees having a property interest in their positions, restrictions that are not
constitutionally imposed on the private employer.”).

      Accordingly, we affirm.
                     ______________________________




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