                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 15, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    FRA NKLIN R. PERKINS,

                Plaintiff-Appellant,

    v.                                                   No. 06-6321
                                                   (D.C. No. CIV-04-715-M )
    M ICHAEL W . W YNNE, * United                        (W .D. Okla.)
    States of America, ex rel., Secretary,
    Department of the Air Force; ALLEN
    B. DECKER, individually and in his
    official capacity,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT **


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




         Plaintiff Franklin R. Perkins appeals from the district court’s summary

judgment order that he failed to present sufficient evidence to create a genuine



*
      M ichael W . W ynne is substituted for James G. Roche as defendant-appellee
pursuant to Fed. R. App. P. 43(c)(2).
**
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
issue as to whether the defendant’s explanation for his demotion was a pretext for

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

                                         I

      On June 30, 2002, M r. Perkins, a civilian employee of the United States

Department of the Air Force (Air Force), was promoted to supervisory industrial

engineering technician. The promotion was subject to his successful completion

of a one-year probationary period. Not long after the promotion, his relationship

with his direct supervisor and other colleagues became strained. In October 2002,

his direct supervisor, Allen Decker, conducted a progress review which indicated

that he was performing poorly; however, M r. Perkins refused to discuss the

review and stated that he no longer wanted to work for M r. Decker. In November

2002, M r. Perkins w as notified in w riting that he had not passed the probationary

period and would be returned to his former position as a non-supervisory

industrial engineering technician.

      In his suit against the Air Force and M r. Decker, M r. Perkins claimed

violations of 42 U.S.C. § 2000e (“Title VII”), 42 U.S.C. § 1981, and the Fifth and

Fourteenth A mendments to the U nited States Constitution. The district court

dismissed all of the claims against M r. Decker and the § 1981 and constitutional

claims against the Air Force. M r. Perkins does not challenge this order on appeal.




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      The Air Force moved for summary judgment on the grounds that

M r. Perkins failed to timely exhaust his administrative remedies. In denying the

motion, the district court found

      there is a genuine issue of material fact as to whether equitable
      tolling should apply to extend the forty-five (45) day time limit for
      [M r. Perkins] to contact an EEO counselor. Specifically, the C ourt
      finds that [M r. Perkins] has put forth evidence that he was actively
      misled.

Aplt. App. at 118.

      The district court, however, did grant the Air Force’s second motion for

summary judgment, holding that M r. Perkins failed to meet his burden of

demonstrating that the Air Force’s explanation for his demotion was pretextual.

This appeal followed.

                                         II

      “W e review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Okla. ex

rel. Dep’t of M ental Health & Substance Abuse Servs., 165 F.3d 1321, 1326

(10th Cir. 1999). 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).




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The evidence and reasonable inferences drawn therefrom are viewed in the light

most favorable to the nonmoving party. Simms, 165 F.3d at 1326.

                                        III

      In cases such as this where a Title VII plaintiff relies on indirect evidence

to prove discrimination, the claim is analyzed under the burden-shifting

framew ork set forth in M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir. 2006).

      Under M cDonnell Douglas, the plaintiff carries the initial burden of
      establishing a prima facie case of racial discrimination. Once the
      plaintiff establishes a prima facie case, the burden shifts to the
      employer to articulate some legitimate, non-discriminatory reason for
      the adverse employment action. If the defendant makes this showing,
      the burden then shifts back to the plaintiff to show that the
      defendant’s proffered justification is pretextual.

Id. (internal citations omitted).

      Applying this framew ork, the district court assumed for purposes of

summary judgment that M r. Perkins “established a prima facie case of

discriminatory discharge,” Aplt. App. at 260, and further found that the Air Force

“met its burden to produce a legitimate, non-discriminatory reason for terminating

[M r. Perkins’s] employment.” Id. Among other things, it noted the A ir Force’s

evidence of M r. Perkins’s “uncooperative demeanor, poor communication skills,

and condescending and disrespectful manner of speaking to co-workers,” id., as

well as the inappropriate reaction to his review, defensive response to negative




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feedback, unsatisfactory performance on a repair plan, and lack of skills and

aptitude to be a supervisor.

      The district court then turned to whether M r. Perkins met his burden of

demonstrating a genuine issue of material fact as to w hether the A ir Force’s

explanation for his demotion was a pretext for discrimination. In this regard,

M r. Perkins advanced four theories: (1) he was replaced by a non-African-

American; (2) another African-American employee was removed as a supervisor

at or about the same time he w as; (3) a white female w orker was chosen over a

female A frican-American who he sponsored for a promotion; and (4) his

supervisor, M r. Decker, failed to comply with the procedure governing situations

where an employee does not pass probation.

      As to each, the court found that the alleged action did not establish pretext

because: (1) M r. Perkins’s replacement was a Hispanic, who is also a member of a

protected class; (2) he conceded that his supervisor, M r. Decker, “took no known

action to remove [the other employee] from his supervisory position,” id. at 184;

(3) his suggested candidate for the promotion was not qualified and he had no

evidence that the successful candidate was also unqualified; and (4) he admitted

that the letter regarding his failure to pass probation “appears to comply with the

[procedures].” Id. at 186.




                                         -5-
                                           IV

      M r. Perkins first argues that the Air Force did not meet its burden of

establishing a facially nondiscriminatory reason for his demotion. W e disagree.

At this stage of the M cDonnell Douglas analysis, the Air Force was required

      merely to articulate through some proof a facially nondiscriminatory
      reason for the termination; the defendant does not at this stage of the
      proceedings need to litigate the merits of the reasoning, nor does it
      need to prove that the reason relied upon was bona fide, nor does it
      need to prove that the reasoning was applied in a nondiscriminatory
      fashion.

EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992).

      The district court correctly applied the M cDonnell Douglas paradigm at this

stage of the analysis, and its finding that the Air Force met its burden of coming

forward with proof of a facially nondiscriminatory reason for demoting

M r. Perkins is supported by the record.

      Having met its burden to articulate a legitimate, non-discriminatory reason

for its adverse employment action, the court correctly held that the burden shifted

back to M r. Perkins to show that the Air Force’s stated reasons were a pretext for

unlawful discrimination. “To show that the defendant’s proffered race-neutral

reasons were actually a pretext for discrimination, this Court has held that the

plaintiff must demonstrate that the defendant’s proffered race-neutral reasons

were so incoherent, weak, inconsistent, or contradictory that a rational factfinder

could conclude the reasons were unworthy of belief.” Young, 468 F.3d at 1250



                                           -6-
(internal quotation marks and brackets omitted). Stated otherwise, “[p]retext

requires a showing that the tendered reason for the employment decision was not

the genuine motivating reason, but rather was a disingenuous or sham reason.”

Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995).

      The relevant inquiry is not whether the defendant’s proffered reasons
      were wise, fair or correct, but whether it honestly believed those
      reasons and acted in good faith upon those beliefs. A plaintiff cannot
      avoid summary judgment with an unadorned claim that a jury might
      not believe defendant’s explanation for his termination; he must point
      to evidence suggesting that defendant itself did not honestly believe
      that explanation.

Exum v. U .S. O lym pic C om m., 389 F.3d 1130, 1138 (10th Cir. 2004) (internal

citation, quotation marks, and brackets omitted).

      Although M r. Perkins disagrees with the Air Force’s assessment of his job

performance and personality, we agree with the district court that he failed to

come forward with evidence sufficient to raise a genuine issue of material fact

concerning pretext. As to his argument that the “self-serving,” Aplt. Op. Br. at 13,

n.3, affidavits and declarations supplied by the Air Force were “suspicious,” id.,

because “they appear to have been drafted by the same person, using the same

language,” id. n.3, he failed to raise this objection in the district court and this

challenge cannot be raised for the first time on appeal. “By failing to object

below, any formal defects in the declaration are deemed to be waived.” Thom as v.

U.S. Dep’t of Energy, 719 F.2d 342, 344-45, n.3 (10th Cir. 1983).




                                           -7-
      Finally, we disagree with M r. Perkins’s argument that the district court’s

finding in its prior order that he “put forth evidence that he was actively misled”

Aplt. A pp. at 118, regarding his appeal rights is evidence of discrimination.

Setting aside the fact that M r. Perkins himself argues that this demonstrates an

“active[] conspir[acy] to remove him and deny him due process,” Aplt. Op. Br. at

11, – not racial discrimination – we have held that alleged irregularities that occur

following adverse action are irrelevant to prove pretext. Jaramillo v. Colo.

Judicial Dep’t, 427 F.3d 1303, 1315 (10th Cir. 2005).

      The judgment of the district court is AFFIRM ED.


                                                     Entered for the Court


                                                     David M . Ebel
                                                     Circuit Judge




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