                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 26 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    PATRICK HILL,

                Plaintiff-Appellant,

    v.                                                   No. 00-3379
                                                  (D.C. No. 98-CV-4094-CM)
    THOMAS E. WHITE, Secretary of                          (D. Kan.)
    the Army,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before MURPHY , McKAY , and BALDOCK , Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 filed this action against the Secretary of the Army, alleging

discrimination in the terms of his employment with the Kansas National Guard

and retaliation in the form of an improvement plan, an unacceptable performance

rating and, ultimately, plaintiff’s dismissal, in violation of 42 U.S.C. §§ 2000e -

2000-e(17). Plaintiff contended he was discriminated against on the basis of

gender because his supervisor, Col. Vonderschmidt, refused to permit him to work

the same four-day, ten-hour week as a female co-employee, another female

employee was permitted to request emergency leave outside the normal

supervisory chain of command, plaintiff’s birthday was not celebrated in the same

manner as female employees, and he was reprimanded for failing to prepare

a particular report. In addition, plaintiff claimed he was retaliated against for

opposing what he considered to be gender discrimination because he was

subjected to a performance improvement plan (PIP), he received an unacceptable

performance appraisal, and he was eventually terminated from employment.

       The district court granted summary judgment for defendant in a thorough

and comprehensive Memorandum Opinion, detailing the operative facts and the

applicable legal standards.   See Hill v. Caldera , No. CIV.A. 98-4094-CM,

2000 WL 1731342 (D. Kan. Oct. 31, 2000). Inasmuch as the parties are familiar

with the facts, we need not repeat them, except as may be necessary to this

disposition.


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       On appeal, plaintiff raises four issues: reverse gender discrimination based

on Col. Vonderschmidt’s refusal to allow plaintiff to work a four-day, ten-hour

schedule and retaliation based on the PIP, the unacceptable performance

appraisal, and the termination from employment.

       This court reviews the district court’s grant of summary judgment de novo,

considering whether there is a genuine issue as to any material fact and whether

the moving party is entitled to judgment as a matter of law.   See Gossett v. Okla.

ex rel. Bd. of Regents for Langston Univ.    , 245 F.3d 1172, 1175 (10th Cir. 2001);

Fed. R. Civ. P. 56(c). The court must review a summary judgment record by

drawing all reasonable inferences in the light most favorable to the nonmoving

party. Thomas v. IBM , 48 F.3d 478, 484 (10th Cir. 1995).

       The district court determined that plaintiff had established a prima facie

case with respect to his discrimination claim that a female coworker (Capt.

Campbell) was permitted to work four, ten-hour days while he was denied the

same request. The district court further determined that defendant had articulated

a nondiscriminatory reason for permitting Capt. Campbell to work that schedule,

i.e., that her status as a project manager provided more opportunity for

compensatory time, which in turn afforded her the flexibility to work those hours.




                                            -3-
      On appeal, plaintiff alleges that a jury could find unworthy of belief

Col. Vonderschmidt’s explanation of why Capt. Campbell could work the four-ten

schedule, but plaintiff could not. The basis of this argument is plaintiff’s

testimony that he had been told that although he was an administrative officer, he

would have other duties and responsibilities not necessarily in that position

description and that his job duties included some project management

responsibilities.

      The district court considered this argument, but also concluded that

plaintiff had not disputed defendant’s assertion that plaintiff’s duties were

primarily administrative, nor had plaintiff “offer[ed] evidence to dispute the

nature of Captain Campbell’s job, her responsibilities, or the demand upon her to

perform overtime work.”    Hill , 2000 WL 1731342, at *8. Contrary to plaintiff’s

arguments, this does not implicate a “falsity of the explanation” such that a trier

of fact could infer that the “employer is dissembling to cover up a discriminatory

purpose.” See Reeves v. Sanderson Plumbing Prods., Inc.     , 530 U.S. 133, 147

(2000). Capt. Campbell was a project manager, and plaintiff was primarily an

administrative employee. The district court properly granted summary judgment

on this claim.

      Plaintiff next argues that the district court erred in granting summary

judgment on his claim of retaliation. This claim arises from “a pattern of adverse


                                         -4-
employment actions” following plaintiff’s opposition “to what he believed to be

reverse discrimination” and consisted of being placed on a PIP, followed by being

given an unacceptable performance rating and consequently being terminated.

Alpt. Br. at 22. To establish a prima facie case of retaliation, plaintiff must show

      (1) protected opposition to Title VII discrimination or participation
      in a Title VII proceeding; (2) an adverse employment action by the
      employer subsequent to or contemporaneous with such opposition or
      participation; and (3) a causal connection between such activity and
      the employer’s adverse employment action.

See Penry v. Fed. Home Loan Bank , 155 F.3d 1257, 1263-64 (10th Cir. 1998).

      Plaintiff claims his opposition to Title VII discrimination consisted of his

informal complaint and meeting with his supervisor in April/May of 1996 and

a subsequent meeting in January of 1997 regarding his request to work four

ten-hour days. He further alleges that his participation in a Title VII proceeding

consisted of his initial interview with an EEO counselor on March 14, 1997, and

the filing of a formal complaint on May 19. As noted, the alleged adverse

employment actions consisted of the PIP, the unacceptable rating and the

termination. He does not allege that the refusal to accommodate his request for

a four-ten work schedule constituted an adverse action. Finally, for his “causal

connection,” he claims that the February 25, 1997 PIP closely followed the

mid-January meeting at which he had again requested the four-ten work schedule,

that the unacceptable performance rating occurred only ten days after the filing of


                                         -5-
his formal EEO charge on May 19, 1997, and that his removal occurred only eight

days after that.

      The district court held that plaintiff had failed to specify which act of

protected activity led to defendant’s alleged retaliation because plaintiff’s

placement on the PIP occurred in February of 1997 and his formal EEO complaint

was not filed until May of that year. Thus, the court looked to the informal

complaint lodged in May of 1996 (and concerning solely the alleged gender

discrimination, not his work performance), and found that connection too loose in

substance and too far removed in time.

      On appeal, plaintiff contends that the PIP closely followed his meeting with

Col. Vonderschmidt in January of 1997 regarding his second request to work four

ten-hour days and that the meeting itself was protected activity. He does not,

however, allege that he raised the January 1997 meeting as a protected act before

the district court, nor has he provided this court with record evidence that he did

so. Since he does not argue that the district court erred by not considering his

claim that the January 1997 meeting constituted protected activity, we can only

conclude he did not present this argument to the district court. Litigants are

required to list for each issue raised on appeal, “the precise reference in the

record where the issue was raised and ruled on.” 10th Cir. R. 28.2(C)(2). Thus,

plaintiff either failed to present the argument to the district court, in which case it


                                           -6-
is waived, or he failed to include the appropriate portion of the record for

review by this court, “in which case we leave the district court’s determination

undisturbed.” Jetcraft Corp v. Flight Safety Int’l   , 16 F.3d 362, 366 (10th Cir.

1993).

         The PIP likewise preceded by a month the protected activity of the

March 1997 EEO interview and the May filing of a formal complaint. The only

other alleged protected activity, the May 1996 informal complaint, occurred nine

months earlier and was not shown to be causally connected to the PIP action.

         Concerning his unacceptable performance appraisal and termination, the

district court held that plaintiff had established a prima facie case of

discrimination, thus shifting the burden to the defendant to show legitimate,

nondiscriminatory reasons for its actions.     See McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 802-05 (1973). Here, the district court carefully detailed

these reasons.   See Hill , 2000 WL 1731342, at *11-12. The record on appeal does

not include defendant’s motion for summary judgment, plaintiff’s response, or

defendant’s reply. Plaintiff fails to take specific issue with the district court’s

reasons, nor does he argue that evidence properly before the district court was not

considered. We decline to search the record for support where a party has failed

to include the proper materials for consideration.    See Knowlton v. Teltrust

Phones, Inc. , 189 F.3d 1177, 1182-83 (10th Cir. 1999).


                                             -7-
      For these and substantially the reasons set forth by the district court, the

judgment of the United States District Court for the District of Kansas is

AFFIRMED.


                                                     Entered for the Court


                                                     Michael R. Murphy
                                                     Circuit Judge




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