                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                  December 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    SIONE HOKO,

                Plaintiff-Appellant,
                                                        No. 11-4016
    v.                                          (D.C. No. 2:09-CV-00361-TS)
                                                          (D. Utah)
    HUISH DETERGENTS, INC.,
    n/k/a Sun Products Corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.



         Sione Hoko appeals pro se the district court’s grant of summary judgment

in favor of Huish Detergents, Inc. (Huish) on his Title VII and state-law claims.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      Mr. Hoko, who identifies himself as Asian/Pacific Islander, worked for

Huish from September 16, 1989, until his employment was terminated on June 27,

2005. His last position with Huish was as a Supervisor in the Raw Material

Department. Huish’s Policy Book, which Mr. Hoko received a copy of in 2004,

included an Internet Policy stating that employees given access to the internet

were required to use it for business purposes only and that personal use of the

internet was not allowed. Mr. Hoko also signed a Computer Security Policy in

2004 acknowledging that Huish computer equipment was to be used only to

conduct company business. The Computer Security Policy stated: “Employees

found to be in violation of this policy are subject to disciplinary action, up to and

including termination of employment.” R., Vol. 2 at 43.

      As of June 2005, Mr. Hoko had access to the internet from his Huish

computer at a level consistent with his role as a Supervisor. Specifically, he had

access to any website on the internet, with the exception of certain categories of

sites that were deemed inappropriate. In his Supervisor position, Mr. Hoko was

expected to spend only ten percent of his work time sitting. In May and June

2005, Mr. Hoko’s supervisor, Shane McPhie, heard that he was spending a lot of

time in the Supervisor’s office. Mr. McPhie asked the Information Technologies

Department to monitor Mr. Hoko’s use of the internet for a period of time. An

audit was approved by the Human Resources Department, and the audit report

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showed that, from June 12 through June 22, 2005, Mr. Hoko repeatedly visited

non-work-related internet sites for extended periods of time during his work day.

A subsequent audit showed that Mr. Hoko was on the internet on

non-work-related sites for several hours during a later shift. On June 27, 2005,

Mr. McPhie and Debbie Mair, Huish’s Director of Human Resources, met with

Mr. Hoko and terminated his employment. They explained that his termination

was based on the excessive amount of time he had been spending on the internet.

      About two weeks later, Mr. Hoko returned an exit-interview form to Huish.

On that form he complained that Mr. McPhie had yelled at him, had applied the

company’s computer-use policy in a discriminatory manner, and had fired him in

retaliation for complaining about discrimination. Huish investigated Mr. Hoko’s

allegations, including interviewing two employees who Mr. Hoko said had

witnessed Mr. McPhie yelling at him. Neither witness supported Mr. Hoko’s

claims regarding yelling or discrimination by Mr. McPhie. One witness did state

that he was forced to do Mr. Hoko’s job for him. The other witness estimated

that Mr. Hoko spent 80% of his time on his computer. Mr. McPhie also denied

Mr. Hoko’s allegations.

      Mr. Hoko filed a charge with the Utah Anti-discrimination and Labor

Division and the Equal Employment Opportunity Commission. He filed this

action after the administrative-claims process concluded. In his second amended

complaint, he alleged claims for race, color, and national-origin discrimination,

                                        -3-
harassment/hostile work environment, and retaliation in violation of Title VII,

42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a). He also alleged a state-law claim for

wrongful termination. Huish moved for summary judgment on all claims, and the

district court granted the motion on December 21, 2010. Mr. Hoko filed a timely

appeal.

                             II. Standard of Review

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

applying the same legal standard used by the district court.” Somoza v. Univ. of

Denver, 513 F.3d 1206, 1211 (10th Cir. 2008) (quotation omitted). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “We examine the factual record and draw all reasonable

inferences in the light most favorable to the non-moving party.” Somoza,

513 F.3d at 1211. We construe Mr. Hoko’s pro se appeal arguments liberally.

See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

                                 III. Discussion

      In its thorough and well-reasoned order, the district court reviewed the

elements for each of Mr. Hoko’s claims and the evidence, or lack thereof, in

support of each claim. Like the district court, we will address each of Mr. Hoko’s

claims in turn.




                                        -4-
          A. Discriminatory Harassment/Hostile Work Environment

      Mr. Hoko alleged that Huish subjected him to harassment and a hostile

work environment based upon his race, color, and national origin. In order to

recover on such a claim, “a plaintiff must show that a rational jury could find that

the workplace is permeated with discriminatory intimidation, ridicule, and insult,

that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Sandoval v. City of

Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (quotation omitted).

      The district court held that Mr. Hoko failed to identify any statement made

by any agent of Huish that could constitute discrimination on the basis of race.

Mr. Hoko claimed that Mr. McPhie harassed him by yelling at him following a

glycerin spill that had occurred during Mr. Hoko’s shift. But the district court

held there was no evidence that Mr. McPhie’s alleged conduct was based on racial

animus. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1139 (10th Cir. 2008)

(addressing claim of racially hostile work environment and stating “harassment

must be racial or stem from racial animus” (brackets omitted)); Sandoval,

388 F.3d at 1327 (requiring “evidence from which a rational jury could infer that

[plaintiff] was targeted for harassment because of her gender, race, or national

origin”). The district court further concluded that, even if Mr. McPhie’s conduct

in yelling at Mr. Hoko was racially motivated, this one isolated incident was

neither sufficiently severe nor sufficiently pervasive to support a claim for

                                         -5-
harassment/hostile work environment. See Sandoval, 388 F.3d at 1327 (holding

two sexist comments insufficient to show workplace permeated with sexist

abuse); MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir.

2005) (noting “courts should filter out . . . isolated incidents (unless extremely

serious)”).

      Mr. Hoko appears to raise two claims of error regarding the district court’s

disposition of this claim. Rather than pointing to evidence in the record of severe

or pervasive harassment based upon his race, color, or national origin, Mr. Hoko

maintains that the employee witnesses who refuted his allegation of

discriminatory harassment cannot be believed because Huish offered each of them

promotions at the time they were interviewed in connection with his report of

discrimination. His attack on the credibility of Huish’s evidence is misplaced

because “[i]t is axiomatic that a judge may not evaluate the credibility of

witnesses in deciding a motion for summary judgment.” Seamons v. Snow,

206 F.3d 1021, 1026 (10th Cir. 2000). Mr. Hoko also claims that he was not

obligated to report the harassment he suffered to Huish because it would have

been futile. This argument is likewise unavailing because the district court did

not base its summary judgment ruling on his failure to report harassment. It

concluded that the single incident of alleged harassment he identified in response

to Huish’s motion was insufficient to support a claim for harassment/hostile work




                                          -6-
environment. We affirm the district court’s grant of summary judgment in favor

of Huish on this claim.

                             B. Disparate Treatment

      The district court next addressed Mr. Hoko’s claims of disparate treatment

based upon his race, color, and national origin. He had the burden of initially

establishing a prima facie case of race, color, and national origin discrimination

by showing that (1) he “belongs to a protected class”; (2) he “suffered an adverse

employment action”; and (3) “the challenged action took place under

circumstances giving rise to an inference of discrimination.” EEOC v. PVNF,

L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). Mr. Hoko asserted that he was

treated differently than other, similarly-situated employees, in relation to the

incident with Mr. McPhie involving the glycerin spill and with respect to his use

of the internet.

      “Adverse employment action includes significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.”

Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quotation omitted). The

district court held that Mr. Hoko’s treatment following the glycerin spill,

specifically being yelled at by Mr. McPhie, did not rise to the level of an adverse

employment action. Regarding his treatment for misusing the internet, Mr. Hoko

argued that, while Huish disciplined other employees for their similar violations

                                         -7-
of company policy by limiting their internet access, Huish left him with broader

access and then audited his use. The district court held that the employees

Mr. Hoko identified as being treated differently than he was were not similarly

situated to him. Moreover, allowing Mr. Hoko to retain broader internet access

was not an adverse employment action, as his level of access was related to his

job responsibilities.

      Mr. Hoko argues that the district court erred in concluding that the other

employees, whose internet access was limited in response to their misuse, were

not similarly situated to him. But he fails to address the district court’s

determination that neither his treatment following the glycerin spill nor Huish’s

decision to maintain his level of internet access were adverse employment

actions. We agree with the district court’s conclusion that Mr. Hoko failed to

show an adverse employment action in order to establish a prima facie case of

disparate treatment. We therefore affirm summary judgment in favor of Huish on

these claims.

                                   C. Retaliation

      To support a prima facie case of retaliation, a plaintiff must show that

(1) he “engaged in protected opposition to discrimination”; (2) he “suffered an

adverse employment action”; and (3) “there is a causal connection between the

protected activity and the adverse employment action.” Petersen v. Utah Dep’t of

Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (quotation omitted). In this context,

                                          -8-
an adverse employment action is any action that a reasonable employee would

have found materially adverse, such that he “might be dissuaded from making a

charge of discrimination.” Somoza, 513 F.3d at 1213. Mr. Hoko alleged both

retaliatory harassment and retaliatory termination.

                            1. Retaliatory Harassment

      Mr. Hoko alleged that, in retaliation for his complaint to Mr. McPhie that

he was managing the department in a discriminatory manner, Mr. McPhie

harassed him by yelling at him and blaming him for the glycerin spill. The

district court found that, according to his own chronology, Mr. Hoko complained

to Mr. McPhie about discrimination after the incident regarding the glycerin spill.

Thus, he failed to show a causal connection between his protected activity and

Mr. McPhie’s alleged retaliation. Mr. Hoko also contended that Mr. McPhie’s

request for an audit of Mr. Hoko’s internet usage was in retaliation for his

complaint about discrimination and was done in order to preempt Mr. Hoko from

taking his complaint to Mr. McPhie’s supervisor. The district court held that the

request for an internet audit was not materially adverse, as it would not dissuade a

reasonable employee from making or supporting a charge of discrimination.

Mr. Hoko does not raise any claim of error with respect to either of these bases

for the district court’s conclusion that he failed to establish a prima facie case of

retaliatory harassment. We therefore affirm the district court’s grant of summary

judgment in favor of Huish on these claims.

                                         -9-
                           2. Retaliatory Termination

      Mr. Hoko also contended that he was terminated in retaliation for

complaining about discrimination to Mr. McPhie. The district court assumed that

Mr. Hoko had satisfied his burden to establish a prima facie case of retaliatory

termination, but the court held that Huish came forward with a legitimate,

nondiscriminatory reason for discharging him: the fact that he visited

non-work-related internet sites repeatedly and for extended periods of time during

his work day, in violation of company policy. Mr. Hoko does not deny that he

used his Huish computer for non-work-related purposes.

      “If the employer provides a legitimate, non-discriminatory justification for

the action, the burden shifts back to the employee to provide evidence showing

that the employer’s proffered reason is a pretext for discrimination.” Stover v.

Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004). To establish a genuine issue as

to pretext, Mr. Hoko was required to demonstrate that Huish’s stated reason was

unworthy of belief. See Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1065

(10th Cir. 2009).

      [He] can meet this standard by producing evidence of such
      weaknesses, implausibilities, inconsistencies, incoherencies, or
      contradictions in the employer’s proffered legitimate reasons for its
      action that a reasonable factfinder could rationally find them
      unworthy of credence and hence infer that the employer did not act
      for the asserted non-discriminatory reasons.

Id. (quotation omitted).


                                       -10-
       Mr. Hoko contends that the district court erred in concluding that he failed

to come forward with any evidence of pretext. He maintains that Huish’s

violation of company policies in performing the audit of his internet usage and in

terminating his employment based upon the audit results is evidence of pretext.

An employer’s failure to follow its own written or unwritten policy or its

established company practice may be relevant to a claim of pretext. See Green v.

New Mexico, 420 F.3d 1189, 1193 (10th Cir. 2005). We do not address

Mr. Hoko’s contentions, however, because he did not make either of these

arguments in the district court. We decline to exercise our discretion in this case

to consider these fact-laden issues for the first time on appeal. See United States

v. Jarvis, 499 F.3d 1196, 1201-02 (10th Cir. 2007) (noting exception to general

rule against considering issue on appeal that was not raised in district court

“where the argument involves a pure matter of law and the proper resolution of

the issue is certain”).

       Mr. Hoko repeats one argument here that he did raise in the district court.

He claims that Huish treated differently other similarly situated employees who

used the internet for non-work-related purposes. “A plaintiff seeking to show

pretext often does so by providing evidence that he was treated differently from

other similarly-situated employees who violated work rules of comparable

seriousness.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir.

2007) (quotation omitted).

                                         -11-
      Mr. Hoko identifies Steve Tracy, Mike Wright, Kenneth Taua, and Matthew

Rodriguez as Huish employees who were surfing the internet, but were not

terminated. While he acknowledges that these other employees did not have the

job title of Supervisor, as he did, he argues that they sometimes performed

supervisory-type duties; therefore, he maintains that they were similarly situated

to him. But “[s]imilarly situated employees are those who deal with the same

supervisor and are subject to the same standards governing performance

evaluation and discipline.” Id. (quotation omitted). Mr. Hoko fails to point to

evidence indicating that he and these other employees all reported to the same

supervisor. See id. at 1121 (holding employee who did not report to plaintiff’s

supervisor was not similarly situated to plaintiff). And his assertion that these

other employees sometimes performed supervisory-type duties does not establish

that they were subject to the same standards governing performance and

discipline that someone with the title of Supervisor was. Nor does Mr. Hoko

show that the extent of these other employees’ unauthorized internet usage was

comparable to his. See id. (holding plaintiff failed to produce evidence that other

employee’s violation of the same work rule was comparable to plaintiff’s serious

violation). The district court did not err in concluding that Mr. Hoko failed to

support his claim of pretext with evidence of disparate treatment. We therefore

affirm the grant of summary judgment in favor of Huish on his claim of

retaliatory termination.

                                        -12-
                            D. Wrongful Termination

      Mr. Hoko’s final claim was that Huish wrongfully terminated him in

violation of the policies in its Policy Book. The district court held this claim

failed as a matter of law because an employment contract with no specified

duration is presumed to be at-will under Utah law. See Berube v. Fashion Centre,

Ltd., 771 P.2d 1033, 1044 (Utah 1989). The court noted the record reflected that

Huish repeatedly informed its employees that they were employed at-will and

disclaimed any intent to hire them for a specified period of time. Moreover,

Mr. Hoko signed an acknowledgment expressly stating his at-will employment

status. Mr. Hoko fails to identify any error in the district court’s conclusion.

We therefore affirm the grant of summary judgment in favor of Huish on his

wrongful-termination claim.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    William J. Holloway, Jr.
                                                    Senior Circuit Judge




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