                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 16, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT




    TOMMY DURANT,

               Plaintiff-Appellant,
                                                         No. 10-1246
    v.                                      (D.C. No. 1:09-CV-00735-RPM-MJW)
                                                          (D. Colo.)
    MILLERCOORS, LLC,

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and TACHA, Circuit Judges.


         After MillerCoors, LLC, terminated Tommy Durant’s employment for

sexual harassment of a female coworker, he filed an action claiming gender

discrimination and retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17. He also claimed he was terminated in

retaliation for his 2002 complaint under the Uniformed Services Employment and



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(b) & (c)(2). The district

court granted summary judgment in favor of MillerCoors. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                     Background

      The basic facts are undisputed. Durant began his employment with

MillerCoors’s predecessor in October 1990, and at the time he was terminated, he

worked in the brew house of the MillerCoors brewery. In mid-May 2007, a

temporary female worker (Complainant) was assigned to work in the brew house

on the same shift as Durant. On September 2, 2007, she reported that Durant had

been sexually harassing her and threatening to get her and her son fired from

MillerCoors if she told anyone. 1 Durant’s supervisor suspended him that day.

      MillerCoors conducted an internal investigation of Complainant’s charges

and issued a confidential report on October 26, 2007, concluding Durant had

violated the company’s sexual-harassment policy, despite his denial of

Complainant’s charges. The decision to terminate Durant’s employment was

made by his immediate supervisor. Thereafter, pursuant to MillerCoors’s policy,

Durant was afforded an internal appeal, which upheld the termination. In

addition, the county sheriff’s department investigated Complainant’s allegations

1
       Although Complainant alleged Durant began harassing her within two
weeks of her start date, she did not report the harassment until about three months
later, apparently because Durant was gone for significant periods. He was on
vacation in June and absent from July 15 through August 2007 due to a injuries
sustained in a motor vehicle accident.

                                        -2-
and filed criminal charges against Durant. MillerCoors’s attorney attended the

trial. Following a jury trial, Durant was acquitted of all charges.

      Durant sued MillerCoors asserting claims for gender discrimination and

retaliation under Title VII and for retaliation under the USERRA. Ruling from

the bench, the district court granted summary judgment in favor of MillerCoors.

Durant appeals, claiming MillerCoors violated his rights under Title VII by

believing Complainant’s incredible and unreliable claims of sexual harassment

and disregarding his denial. He also asserted the confidential report was a sham

because Complainant’s allegations were incredible, the investigators did not

believe him, and some of the witnesses interviewed for the report later indicated

they had not observed Durant harass Complainant. For a Title VII retaliation

claim, Durant averred (1) the internal investigation unreasonably believed

Complainant, (2) the internal appeal process was unfair, and (3) MillerCoors paid

counsel to attend the criminal trial. He also invoked the USERRA, alleging he

was terminated in retaliation for filing a USERRA complaint against

MillerCoors’s predecessor in 2002.

                                Standards of Review

      The purpose of a summary judgment motion is to assess whether a
      trial is necessary. In other words, there must be evidence on which
      the jury could reasonably find for the plaintiff. A court grants
      summary judgment for the moving party only where there is no
      genuine issue as to any material fact in the pleadings, depositions,
      answers to interrogatories, admissions, and affidavits. When
      applying this standard, a court must view the factual record in the

                                         -3-
       light most favorable to the non-movant. Summary judgment will not
       lie if the dispute about a material fact is genuine, that is if the
       evidence is such that a reasonable jury could return a verdict for the
       nonmoving party.

Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (citations

omitted) (brackets omitted) (internal quotation marks omitted).

                                 USERRA Retaliation

       The relevant provisions of the USERRA provide:

       An employer may not discriminate in employment against or take any
       adverse employment action against any person because such
       person . . . has taken an action to enforce a protection afforded any
       person under this chapter, . . . or . . . has exercised a right provided
       for in this chapter.

38 U.S.C. § 4311(b).

       An employer shall be considered to have engaged in actions
       prohibited–

....

       under subsection (b), if the person’s . . . action to enforce a
       protection afforded any person under this chapter . . . or . . . exercise
       of a right provided for in this chapter, is a motivating factor in the
       employer’s action, unless the employer can prove that the action
       would have been taken in the absence of such person’s enforcement
       action . . . or exercise of a right.

Id. § 4311(c)(2).

       The burden is on the employee making a USERRA claim to show his

military service was “a substantial or motivating factor in the adverse

employment action.” Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir.


                                           -4-
2001) (internal quotation marks omitted). A retaliatory motive may be inferred

“from a close temporal proximity between an employee’s protected conduct and

an employer’s adverse employment action.” Hinds v. Sprint/United Mgmt. Co.,

523 F.3d 1187, 1204 (10th Cir. 2008). The five-year span between Durant’s 2002

USERRA complaint and his 2007 termination is too long to establish causation

based on temporal proximity. See id. (noting three months is too long to infer

retaliatory motive).

      Durant contends, however, he was treated less favorably by his employer

shortly after his USERRA complaint because he was moved to a hostile crew, he

was no longer favored by management, and he was not offered opportunities to

advance. Under the USERRA, a benefit of employment is defined as “any

advantage, profit, privilege, gain, status, account, or interest (other than wages or

salary) . . . .” 38 U.S.C. § 4303(2). Even under a broad construction of the

statute, Durant’s general assertions of less agreeable employment circumstances,

which do not describe “drastically different” job duties, did not constitute an

“adverse action or denial of a benefit of employment.” Clegg v. Ark. Dep’t of

Corr., 496 F.3d 922, 931 (8th Cir. 2007). Moreover, Durant’s evidence does not

indicate the alleged disfavored treatment commenced within three months of his

USERRA proceedings and therefore is not evidence of retaliation. See Hinds, 523

F.3d at 1204 (recognizing that a pattern of retaliatory conduct commencing within

three months of protected activity may qualify as temporally proximate).

                                          -5-
      Durant also asserts the MillerCoors Director of Employee/Labor Relations,

Mark Hines, who was instrumental in resolving the USERRA complaint and who

chaired the internal appeal proceedings, was motivated by an antimilitary animus.

But Durant conceded his immediate supervisor made the decision to terminate his

employment and he had no evidence his supervisor had been influenced by Hines

or anyone else. Cf. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1194 (2011)

(addressing “cat’s paw” theory of liability and holding “if a supervisor performs

an act motivated by antimilitary animus that is intended by the supervisor to cause

an adverse employment action, and if that act is a proximate cause of the ultimate

employment action, then the employer is liable under USERRA” (footnote

omitted)). Accordingly, Durant has failed to carry his burden to show his military

service was a substantial or motivating factor in the adverse employment action

and summary judgment in favor of MillerCoors was appropriate.

                              Gender Discrimination

      Durant, a male, next contends his termination was based on his gender in

violation of Title VII. 2 A traditional prima facie case of gender discrimination

requires sufficient circumstantial evidence to show: “(1) [plaintiff] is a member

of a protected class, (2) [plaintiff] suffered an adverse employment action,

2
       Under 42 U.S.C. § 2000e-2(a)(1), it is unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin.”

                                         -6-
(3) [plaintiff] was qualified for [his job], and (4) [plaintiff] was treated less

favorably than others not in the protected class.” Turner v. Pub. Serv. Co. of

Colo., 563 F.3d 1136, 1142 (10th Cir. 2009). As a member of a historically

favored group, however, Durant may not rely on the traditional factors to

establish a prima facie case by way of circumstantial evidence, unless, “in lieu of

showing that he belongs to a protected group, [he] establish[es] background

circumstances that support an inference that the defendant is one of those unusual

employers who discriminates against the majority.” Notari v. Denver Water

Dep’t., 971 F.2d 585, 589 (10th Cir. 1992). In the alternative, Durant may rely on

direct evidence of discrimination. Id. at 590. Durant argues he presented both

circumstantial evidence and direct evidence.

      For direct evidence of gender discrimination, Durant asserts (1) the internal

investigation was biased, false, and unfair; (2) MillerCoors believed Complainant

even though her reports were incredible and unreliable; (3) his termination

involved the highest level of MillerCoors’s human relations department; and

(4) he was deprived of his appeal rights. “Direct evidence demonstrates on its

face that the employment decision was reached for discriminatory reasons.”

Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007) (brackets

omitted) (internal quotation marks omitted). Durant’s proffered direct evidence

requires an inference that the alleged acts were based on his gender; accordingly,

it is not direct evidence of discrimination. See id. But even viewing these claims

                                           -7-
as circumstantial evidence, they do not indicate MillerCoors favors women over

men.

       Durant’s circumstantial evidence includes the “Homer James case” and

MillerCoors’s decision not to discipline a female employee who was determined

to have sexually harassed Durant, thus demonstrating MillerCoors favors women. 3

The only information provided about the Homer James case is James sued

MillerCoors for falsely accusing him of sexual harassment and won. This vague

example is insufficient to show MillerCoors is an unusual employer who

discriminates against the majority. As for the female employee, Durant has not

established she was similarly situated to him because there was no evidence they

had the “same supervisor and [were] subject to the same standards governing

performance evaluation and discipline [or were] disciplined for conduct of

comparable seriousness.” McGowan v. City of Eufala, 472 F.3d 736, 745

(10th Cir. 2006) (citations omitted) (internal quotation marks omitted).

Consequently, Durant has not adduced evidence to show disparate treatment, see

id., nor has he proffered evidence showing background circumstances to support a

suspicion that the defendant is an unusual employer who discriminates against the

majority. Thus, he has failed to present a prima facie case of gender

3
      Durant also cites to a hostile-environment claim filed by another female
employee. He maintains she was treated more favorably than he because her case
was assigned to an independent investigator. Durant relies on his own
presumption that an internal investigator is more likely to be predisposed against
men. This is not evidence.

                                        -8-
discrimination and the district court’s grant of summary judgment on this claim

was correct.

                                Title VII Retaliation

      Title VII forbids an employer from retaliating against an individual because

the individual “has opposed any practice made an unlawful employment practice”

by Title VII or because the individual “has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing” pursuant

to Title VII. 42 U.S.C. § 2000e-3(a). To make out a prima facie case, a plaintiff

must establish “(1) [he] engaged in protected opposition to discrimination;

(2) [he] suffered an adverse action that a reasonable employee would have found

material; and (3) a causal nexus exists between [his] opposition and the

employer’s adverse action.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176

(10th Cir. 2007).

      Durant asserts he engaged in protected opposition to discrimination by

counseling Complainant on her job performance and denying her sexual

harassment charges. But counseling on job performance is not a practice made

unlawful by Title VII. As for his denial of Complainant’s charges, Durant

apparently contends this qualified as protected opposition to discrimination under

Title VII, citing Kelley v. City of Albuquerque, 542 F.3d 802, 813 (10th Cir.

2008). But Kelley’s statement that Title VII’s “‘participation clause’ protects an

employee who . . . defends himself against charges of discrimination” refers to

                                         -9-
participation in administrative proceedings brought under Title VII. Id. (citing

Deravin v. Kerik, 335 F.3d 195, 204 (2d Cir. 2003) (“We accordingly hold that

defending oneself against charges of discrimination–to the extent that such

defense involves actual participation in a Title VII proceeding or investigation–is

‘protected activity’ within the scope of [42 U.S.C. § 2000e-3(a)] based on a plain

reading of the statute’s text.”)). Durant has failed to make out a prima facie case

of Title VII retaliation because he did not establish he engaged in protected

opposition to discrimination.

                                     Conclusion

      Many of Durant’s arguments assert MillerCoors treated him unfairly. But

Title VII prohibits only those employment practices that discriminate on the basis

of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

This court “cannot act as a super personnel department or second-guess [an

employer’s] good-faith business judgments.” Turner, 563 F.3d at 1144 (internal

quotation marks omitted).

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




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