                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      July 3, 2013
                                                                     Elisabeth A. Shumaker
                                      TENTH CIRCUIT                      Clerk of Court



 CHRISTOPHER J. GILKEY,
               Plaintiff–Appellant,
 v.                                                           No. 13-3089
                                                    (D.C. No. 6:12-CV-01150-EFM)
 PROTECTION ONE ALARM                                          (D. Kan.)
 MONITORING, INC.,
               Defendant–Appellee.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Plaintiff Christopher Gilkey, proceeding pro se, appeals from the district court’s

order disposing of his employment discrimination claims against Defendant, his former

employer. In his complaint, Plaintiff asserted three claims against Defendant under Title

VII: (1) retaliation, (2) wrongful termination based on race discrimination, and (3) hostile


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
work environment.1 Prior to filing his complaint in the district court, Plaintiff submitted a

complaint to the Equal Employment Opportunity Commission, in which he alleged, “I

believe that I was discriminated against in violation of Title VII of the Civil Rights Act of

1964, as amended, by being discharged because of my race, black-African American and

retaliation.” (R. at 142.) Shortly thereafter, Plaintiff submitted a complaint to the

Kansas Human Rights Commission, in which he alleged, “I was terminated due to my

race, African American, and as an act of retaliation for having openly opposed acts and

practices forbidden by the Kansas Act Against Discrimination.” (R. at 82.) Defendant

filed a motion to dismiss Plaintiff’s hostile work environment claim for lack of subject

matter jurisdiction, arguing Plaintiff failed to exhaust this claim because his complaints to

the EEOC and KHRC failed to include the hostile work environment claim and that claim

was not reasonably related to his allegations regarding his termination. Defendant later

filed a motion for summary judgment, arguing Plaintiff could not establish any of his

claims. After considering the parties’ briefing, the district court granted Defendant’s

motions. Specifically, the district court concluded it lacked subject matter jurisdiction

over Plaintiff’s hostile work environment claim as a result of Plaintiff’s failure to exhaust

his administrative remedies. It then concluded Plaintiff failed to establish a prima facie



       1
        Plaintiff listed a separate claim for “harassment.” However, the district court
noted that “by alleging that Protection One engaged in harassment and created a hostile
work environment, Gilkey has pleaded only one violation of Title VII.” (R. at 268.) The
court accordingly treated Plaintiff’s harassment and hostile work environment claims as
“one and the same.” (Id.)

                                             -2-
case of race discrimination and retaliation. Plaintiff now appeals.

       On appeal, Plaintiff argues the district court erred in granting Defendant’s motion

to dismiss and its motion for summary judgment, although the basis for this argument is

less than clear. It appears that Plaintiff believes the district court erred in dismissing his

hostile work environment claim because it failed to consider evidence of ongoing

harassment and the fact Plaintiff filed an internal grievance based on “unwarranted write-

ups and harassment” (Appellant’s Opening Br. at 18). However, the district court’s

dismissal of Plaintiff’s hostile work environment claim was based on its determination

that Plaintiff failed to include that claim in his complaints to the EEOC and KHRC, and

therefore failed to exhaust his administrative remedies. We see no error in this

conclusion. Turning then to Plaintiff’s race discrimination and retaliation claims, it

appears Plaintiff believes the district court erred in applying the summary judgment

standard and, specifically, impermissibly resolved disputed facts in favor of Defendant.

After a thorough review of the record on appeal, we see no error in the district court’s

application of the summary judgment standard or its consideration of the facts.

Furthermore, we agree with the district court that Plaintiff failed to establish a prima facie

case for his race discrimination and retaliation claims, and Defendant was therefore

entitled to summary judgment on those claims.

       Accordingly, and for substantially the same reasons given by the district court, we

AFFIRM the district court’s order granting Defendant’s motion to dismiss and motion




                                              -3-
for summary judgment.

                              Entered for the Court



                              Monroe G. McKay
                              Circuit Judge




                        -4-
