                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 22, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MARQUAN ROCHELLE,

             Plaintiff-Appellant,

v.                                                         No. 12-3259
                                               (D.C. No. 2:11-CV-02150-CM-DJW)
HY-VEE, INC.,                                               (D. Kan.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.



      Marquan Rochelle, proceeding pro se, appeals the district court’s order

granting summary judgment to his former employer. He claims that the employer

retaliated against him in violation of Title VII for complaining about racial

discrimination. We exercise jurisdiction under 28 U.S.C. § 1291 and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. Rochelle, an African American male, was employed by Hy-Vee, Inc.

somewhat intermittently from December 1997 until he resigned on May 15, 2011.

He worked full time in the meat department until September 2009, when he stated

that he could no longer work in the evenings; he then became a part-time employee.

On June 9, 2010, Mr. Rochelle filed a charge of discrimination with the Kansas

Human Rights Commission and the Equal Employment Opportunity Commission.

He alleges that his part-time work hours were then reduced in retaliation for filing the

discrimination charge.

      The district court carefully reviewed Mr. Rochelle’s work hours from

September 28, 2009, through May 9, 2011. The court determined that Mr. Rochelle

had been assigned approximately the same number of work hours per week after

filing the charge as before. Accordingly, the court found that Mr. Rochelle failed to

show a prima facie case of unlawful retaliation.

      Mr. Rochelle was represented by counsel in the district court. He appeals

pro se, arguing that he required a work schedule that would permit him to continue

his college classes, and claiming discrimination, racial harassment, and retaliation.

II.   DISCUSSION

      “We review the district court’s summary judgment order de novo, and apply

the same legal standards as the district court.” Ribeau v. Katt, 681 F.3d 1190, 1194

(10th Cir. 2012) (internal quotation marks omitted). “The court shall grant summary


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judgment 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).

Summary judgment “can be affirmed only if [the moving party] shows that there is

no genuine dispute of material fact; a dispute exists if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Bertsch v.

Overstock.com, 684 F.3d 1023, 1029 (10th Cir. 2012) (internal quotation marks

omitted).

      “Title VII forbids retaliation against an employee because [he] has ‘opposed’

any practice made unlawful by Title VII, or because [he] has ‘participated . . . in an

investigation, proceeding, or hearing’” regarding a claim of discrimination. Stover v.

Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004) (quoting 42 U.S.C. § 2000e–3(a)).

Mr. Rochelle does not allege direct evidence of retaliation; therefore, the McDonnell

Douglas framework applies. See id.; McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Under that framework, the plaintiff must first state a prima facie case of

retaliation. Conroy v. Vilsack, No. 11-4091, 2013 WL 491546, at *6 (10th Cir.

Feb. 11, 2013). If he does so, the employer must come forward with a legitimate,

nonretaliatory reason for the employment action. Id. Then the plaintiff must

demonstrate that the stated reason is a pretext for unlawful retaliation. Id.

      To state a prima facie case of retaliation, Mr. Rochelle must show: “(1) that

[he] engaged in protected opposition to discrimination, (2) that a reasonable

employee would have found the challenged action materially adverse, and (3) that a


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causal connection existed between the protected activity and the materially adverse

action.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1219 (10th Cir. 2013) (internal

quotation marks omitted).

      There is no dispute that Mr. Rochelle engaged in protected opposition to

discrimination, thus satisfying the first element of a prima facie case. We consider

the remaining two elements.

      An adverse employment action is a “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.” Daniels v.

United Parcel Serv., Inc., 701 F.3d 620, 635 (10th Cir. 2012) (internal quotation

marks omitted). Consequently, we consider whether there was a sufficiently

significant change in Mr. Rochelle’s assigned part-time work hours after he filed the

discrimination charge. We conclude that there was not.

      Mr. Rochelle does not challenge the district court’s determination that the

number of work hours was approximately the same before and after he filed the

discrimination charge.1 And he conceded in his deposition that his work hours had

not changed in any appreciable way after he filed his charge. R. at 94. Accordingly,
1
       Mr. Rochelle argues for the first time on appeal that Hy-Vee “made up work
schedules dating back in the past on days [he] was not schedule[d] to work.” Aplt.
Opening Br. at 13. His failure to raise this argument in the district court precludes
our review of it. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1261
(10th Cir. 2011) (“If the claims are not preserved in the district court, they are
forfeited and may not be appealed.”). Moreover, this claim conflicts with his
deposition testimony that the work schedules were accurate. See R. at 93.


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he failed to present evidence of an adverse employment action and has failed to meet

the second factor for a prima facie case. And because he failed to show a materially

adverse action, he necessarily failed to show the third factor—a causal connection

between protected activity and a materially adverse action. Thus, because

Mr. Rochelle failed to establish a prima facie case of unlawful retaliation, summary

judgment was properly entered in favor of Hy-Vee.

       Mr. Rochelle’s claims of discrimination and racial harassment were not

included in the pretrial order so were not addressed by the district court.

See Elephant Butte Irrigation Dist. v. U.S. Dep’t of Interior, 538 F.3d 1299, 1302

(10th Cir. 2008) (“[T]he pretrial order is treated as superseding the pleadings and

establishing the issues to be considered at trial.” (internal quotation marks omitted)).

These claims, therefore, were “not part of the case before the district court,” and we

“decline to reach the merits.” Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1305

(10th Cir. 2003).

III.   CONCLUSION

       The judgment of the district court is affirmed.


                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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