                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        MAR 12 1997
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


CHRISTOPHER T. BELLAIRS,

             Plaintiff-Appellant,
                                                       No. 95-1486
v.                                                  (Dist. of Colorado)
                                                   (D.C. No. 94-B-1405)
COORS BREWING COMPANY,

             Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before HENRY, RONEY **, and MURPHY, Circuit Judges.


      Appellant Christopher T. Bellairs was terminated by Coors Brewing Co.

(“Coors”) for sexually harassing a female co-worker in violation of Coors’ sexual

harassment policy. Bellairs brought this action for reverse gender and race

discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§



      *
       This order and judgment is not binding precedent, except under the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.

       Honorable Paul H. Roney, Senior Circuit Judge for the 11th Circuit Court
      **

of Appeals, sitting by designation.
2000e to 2000e-17, and for violation of his rights under 42 U.S.C. § 1981.

Bellairs alleged Coors treated him differently from his female, Hispanic, and

African-American co-workers who allegedly also sexually harassed other

employees but were not terminated. Bellairs additionally brought claims against

Coors for breach of contract and outrageous conduct. He now appeals the district

court’s order granting summary judgment in favor of Coors, but only with respect

to his claims for reverse discrimination and breach of contract. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRMS the ruling of

the United States District Court for the District of Colorado.



                                 BACKGROUND

      Bellairs was employed by Coors from December 1974 until his termination

for sexual harassment in April 1993. In March 1993, Kris Kosirog, Bellairs’

female co-worker in the can manufacturing warehouse, complained to the acting

warehouse team leader that she “need[ed Bellairs] to leave [her] alone.” Based on

this complaint, the acting team leader called a meeting with Kosirog, Bellairs, and

the team leader. At the meeting, Bellairs was disruptive and denied the

allegations against him. Kosirog later met with Rich Jakubiak of Employee

Relations and relayed further information that Bellairs had made derogatory

sexual remarks about her in the warehouse. Jakubiak then interviewed other


                                         -2-
warehouse employees, three of whom corroborated Kosirog’s claims. 1 The acting

warehouse team leader then terminated Bellairs based on an investigation of the

claims against him and in light of Coors’ personnel policies.

      Coors has a personnel policy which both parties have agreed created a

binding employment contract. Policy W-3 contains an explanation of Coors’

disciplinary procedures:

      Progressive discipline steps are:
      -      a first written warning for first offense
      -      a final written warning for the second offense
      -      discharge for the third offense.
      Disciplinary actions for absenteeism and policy/performance offenses
      are administered separately.
      All disciplinary actions remain in effect and in the employee’s
      personnel file for a 12 month period. Progressive discipline is based
      only on the last 12 month period. Supervisors, however, are
      expected to assess an employee’s entire work history before issuing
      discipline.

      Bellairs’ termination was based on “violations of Coors’ policies D-1:

Discrimination and Sexual Harassment and gross misconduct in W-3: Work Rules

and Corrective Discipline.” Pursuant to policy W-3, the acting warehouse team

leader relied on Bellairs’ prior disciplinary record which contained several first

and final warnings for various types of misconduct. At the time Bellairs was

terminated, he was on a final written warning for sleeping on the job. In addition,



      1
        The three employees who witnessed Bellairs’ sexual comments about
Kosirog were caucasian males.

                                         -3-
Coors had received complaints in the past that Bellairs had sexually harassed

other co-workers.

      Coors’ personnel policy provides a process for appeal of any employment

decision, and Bellairs accordingly appealed his termination to Coors’ Appeal

Board. The board upheld his termination, finding the termination justified

because Bellairs had violated Coors’ policies by creating a hostile work

environment for Kosirog. Next, Bellairs filed a claim with the Equal Employment

Opportunity Commission (“EEOC”) which resulted in a finding of no probable

cause. Bellairs then filed this action.

      Before the district court, Bellairs argued that Coors had treated him

disparately because he was a white male. Specifically, Bellairs argued that

Kosirog, an Hispanic male employee, and an African-American employee had all

been accused of sexual harassment by co-employees yet were not terminated.

Based on these facts, Bellairs claimed that Coors discriminated against him in

terminating him because he was a white male. Bellairs also claimed that Coors

breached its employment contract by terminating him.

      The United States District Court for the District of Colorado granted Coors’

motion for summary judgment, finding that Bellairs failed to state a prima facie

case of race or gender discrimination and that Bellairs presented no genuine issue




                                          -4-
of material fact as to whether Coors breached its employment contract. Bellairs

now appeals.



                                    ANALYSIS

      This court reviews a decision granting summary judgment de novo, viewing

the record in the light most favorable to the non-moving party. Wolf v. Prudential

Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is appropriate

only if there are no genuinely disputed issues of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

      While the movant bears the burden of showing the absence of a
      genuine issue of material fact, the movant need not negate the non-
      movant’s claim. If the movant carries this initial burden, the non-
      movant may not rest upon its pleadings, but must set forth specific
      facts showing a genuine issue for trial as to those dispositive matters
      for which it carries the burden of proof.

Wolf, 50 F.3d at 796 (citations omitted).

      With respect to Bellairs’ reverse gender and race discrimination claims, this

court determines the summary judgment standard was met. In the absence of

direct evidence of discrimination, 2 Title VII disparate treatment claims require a

three-part burden-shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). First, the plaintiff must establish a prima facie case of


      2
         The district court held that Bellairs did not produce any direct evidence
of discrimination and Bellairs does not contest that holding.

                                         -5-
discrimination. Id. at 802. If the plaintiff meets this initial burden, the burden

shifts to the employer to “articulate some legitimate, nondiscriminatory reason”

for the employment decision. Id. If the defendant meets this burden, the burden

then reverts back to the plaintiff to prove that the reasons proffered by the

defendant are mere pretext. Id. at 804; Randle v. City of Aurora, 69 F.3d 441,

452-53 (10th Cir. 1995).

      Coors conceded, for purposes of its summary judgment motion, that

Bellairs could establish his prima facie case of gender and racial discrimination. 3

Coors, however, met its subsequent burden by establishing a legitimate, non-

discriminatory reason for terminating Bellairs: gross misconduct in the form of

sexual harassment. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507

(1993); EEOC v. Flasher Co., 986 F.2d 1312, 1316, 1318 (10th Cir. 1992).

      Bellairs’ termination was explained by legitimate employment decisions.

Coors offered evidence that it terminated Bellairs because it determined after an


      3
         On appeal, Bellairs claims that because Coors conceded Bellairs was able
to establish a prima facie case of discrimination, he went no further to present
evidence of a prima facie case. Accordingly, Bellairs claims the district court
erroneously found that he failed to present sufficient evidence in support of his
prima facie case. Assuming without deciding the district court erred in its
analysis of Bellairs’ prima facie case, we may “‘affirm the grant ... of summary
judgment if any [other] proper ground exists to support the lower court’s ruling.’”
Cheyenne-Arapaho Tribes of Oklahoma v. United States, 966 F.2d 583, 587 (10th
Cir. 1992), cert. denied, 113 S. Ct. 1643 (1993). Bellairs’ failure to present
sufficient evidence establishing pretext, as discussed below, is an appropriate
alternative basis to affirm the district court’s grant of summary judgment.

                                          -6-
investigation that Bellairs sexually harassed Kosirog. Specifically, Coors

presented evidence that Kosirog’s accusations of sexual harassment against

Bellairs were corroborated by three witnesses. In addition, Bellairs had a

substantial history of employment infractions, including complaints for sexual

harassment, and was on a final written warning for sleeping on the job at the time

he was terminated. Coors thus presented sufficient evidence to establish a

legitimate, non-discriminatory reason for terminating Bellairs.

      Once Coors made this showing, Bellairs had the burden of presenting

“evidence that the defendant’s proffered nondiscriminatory reason was

pretextual--i.e., unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441, 452-

53 n. 17 (10th Cir. 1995). Bellairs relied on the following as evidence of pretext:

1) he was terminated for sexual harassment while three minority employees also

accused of sexual harassment were not terminated; 2) Coors equivocated on its

reason for terminating Bellairs; 3) the suspect credibility of the three

corroborating witnesses. 4




      4
         We do not address two of Bellairs’ additional pretext arguments: 1)
Coors improperly relied on Bellairs’ disciplinary records which were more than
12 months old; and 2) Coors altered Bellairs’ disciplinary summary. They were
raised for the first time on appeal. See Walker v. Mathers, 959 F.2d 894, 896
(10th Cir. 1992) (stating general rule that this court will not consider issue not
raised below).

                                          -7-
      With respect to Bellairs’ first pretext argument, we note that “Title VII

does not make unexplained differences in treatment per se illegal nor does it make

inconsistent or irrational employment practices illegal. It prohibits only

intentional discrimination based upon an employee’s protected class

characteristics.” Flasher, 986 F.2d at 1319 (emphasis in original). In Bellairs’

case, he provides no support for his claim that the differences in treatment were in

any way illegal.

      Bellairs could have provided support for this pretext argument had he been

able to show that the three minority employees were similarly situated. See id. at

1316. To the contrary, however, Bellairs’ situation was different from the other

employees. The sexual harassment claims against Bellairs were corroborated by

three witnesses; the claims against two of the three minority employees had no

witness corroboration and the claim against the third was resolved when the

parties reached an agreement. Bellairs presented no evidence that any of the other

three employees had a history of prior sexual harassment complaints, yet Bellairs

had a history of such complaints. His first pretext argument thus does nothing

more than describe “unexplained differences in treatment.”

      With respect to Bellairs’ second pretext theory, it is true that this court has

inferred pretext when an employer changed its reason for terminating an

employee. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1380-81 (10th Cir. 1994)


                                         -8-
(inferring pretext where employer initially stated reason for termination was

economic, but later justified termination based on employee’s “inability to have a

cohesive faculty”). Bellairs reasons that Coors’ explanation is pretextual because

Coors initially referred to the termination as “gross misconduct” without using the

term “harassment” and only now claims that it terminated Bellairs for sexual

harassment. However, this argument is merely semantical. We agree with the

district court that there is no evidence Coors initially stated any reason for

terminating Bellairs other than his violation of personnel policies W-3 and D-1:

sexual harassment and gross misconduct.

      Finally, in making his third pretext argument, Bellairs claims that he

presented sworn testimony of two of Coors’ three witnesses inconsistent with

their original statements given during Coors’ initial investigation. He also notes

that Coors’ third witness did not sign his statement until six months after Bellairs

was terminated. Bellairs correctly asserts: “If a plaintiff succeeds in raising a

genuine factual issue regarding the authenticity of the employer’s stated motive,

summary judgment is inappropriate because it is for the trier of fact to decide

which story is to be believed.” See Randle, 69 F.3d at 453.

      We note, however, that at issue is not the truthfulness or consistency of

each witness’ statement, but rather Coors’ motivation at the time Bellairs was

terminated. In order to be material, any question of fact which Bellairs raises


                                          -9-
needs to “demonstrat[e] that the defendant’s proffered non-discriminatory reason

is unworthy of belief.” Id. With these alleged inconsistent statements, Bellairs

does not challenge the believability of Coors’ reason for terminating Bellairs.

Rather, Bellairs challenges only the credibility of witness statements made during

depositions which happened after Coors’ decision to terminate Bellairs.

Moreover, Bellairs does not present a different story for a jury to believe. See

Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993). He claims that Coors’

real motivation for terminating him was his status as a white male; but he presents

no evidence or disputed fact to show that Coors’ profferred reason is unworthy of

belief.

          Thus, we find the district court did not err in granting Coors’ summary

judgment motion with respect to Bellairs’ claim of reverse discrimination.

          Bellairs also appeals the district court’s decision to enter summary

judgment in favor of Coors on Bellairs’ breach of employment contract claim.

Bellairs and Coors agree that Coors’ personnel policies created a binding

contract. Thus, we need only address whether that contract was breached.

          In their summary judgment memoranda, both parties argued the issue

whether Bellairs’ breach of contract claim was barred by Coors’ “final and

binding” Appeals Board decision. Like the district court, we find it unnecessary

to address this argument. Rather, we agree with the court that the issue is


                                            -10-
“whether a reasonable trier of fact could conclude [Coors] failed to follow its

disciplinary and termination procedures.”

      We further agree with the district court that no reasonable trier of fact

could have so found. Bellairs does not dispute his awareness of Coors’ personnel

policies. In fact, he voluntarily availed himself of Coors’ Appeal Board. In

addition, Bellairs did not request the district court to review the Appeal Board’s

decision, nor did he create a genuine dispute as to whether Coors fully followed

its procedures. We thus affirm the district court’s ruling that, “as a matter of law,

no reasonable juror could find that [Coors] breached its employment contract with

Bellairs based on the evidence presented in the motion and response.” See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).



                                  CONCLUSION

      For the reasons set forth above, we AFFIRM the ruling of the United

States District Court for the District of Colorado.

                                        ENTERED FOR THE COURT,



                                        Michael R. Murphy
                                        Circuit Judge



                                         -11-
