                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 15, 2010

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court



    ALTUS GARDNER,

               Plaintiff-Appellant,

    v.                                                  No. 10-5017
                                           (D.C. No. 4:08-CV-00646-TCK-FHM)
    SEARS HOLDINGS CORPORATION;                         (N.D. Okla.)
    KMART; KMART HOLDING
    CORPORATION; KMART
    MANAGEMENT CORPORATION;
    KMART CORPORATION,

               Defendants-Appellees,

    and

    JOHN DOE, sued as John Does 1-5,

               Defendant.



                            ORDER AND JUDGMENT *


Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Altus Gardner filed a civil rights complaint against the defendant

companies asserting federal claims for race discrimination, age discrimination,

and retaliation, as well as various state employment law claims. The district court

granted summary judgment in favor of all defendants on all claims. 1 Mr. Gardner

now appeals from the district court’s decision.

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

                                          I.

      The district court provided a thorough summary of the facts, and we need

not restate them in detail here. Mr. Gardner is a black male who was hired by

Kmart Corporation as a manager trainee in 1976. He was promoted to store

manager in 2004. After his store received a series of negative reviews,

Mr. Gardner resigned from his position at Kmart in February 2007. He was

fifty-seven years old at the time of his resignation.

      In June 2007, Mr. Gardner filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC), asserting that he was

discriminated against on the basis of race and age, constructively discharged,

subjected to a hostile work environment, and retaliated against for participating in


1
      Kmart Corporation moved for summary judgment on the merits. All of the
other defendants adopted the arguments of Kmart as to the merits but also moved
for summary judgment based on their contention that they were not properly
named as defendants. Because the district court granted summary judgment on
the merits in favor of all defendants, it concluded that the issue as to who was
properly named as a defendant was moot.

                                         -2-
protected activity. He received a right-to-sue letter from the EEOC in February

2008. He originally filed this action in state court, but it was subsequently

removed to federal court.

                                          II.

      Before we discuss the merits of Mr. Gardner’s claims, we must address our

jurisdiction. Appellees dispute that we have jurisdiction to consider this appeal,

asserting that Mr. Gardner’s notice of appeal was not timely filed. The district

court entered judgment in favor of defendants on January 5, 2010. Mr. Gardner’s

notice of appeal was due on February 4, 2010, but he did not file his notice until

February 16.

      On March 5, he filed a motion for an extension of time to file his appeal,

which the district court granted. See 28 U.S.C. § 2107(c) (“The district court

may, upon motion filed not later than 30 days after the expiration of the time

otherwise set for bringing appeal, extend the time for appeal upon a showing of

excusable neglect or good cause.”); Fed. R. App. P. 4(a)(5)(A) (same). The

district court’s order validated the earlier notice of appeal. See Hinton v. City of

Elwood, 997 F.2d 774, 778 (10th Cir. 1993) (“[W]e believe that Rule 4(a)(5)

permits the district court’s approval of a timely motion to extend to validate a

prior notice of appeal.”).

      Accordingly, we conclude we have jurisdiction to consider this appeal.




                                          -3-
                                         III.

      Mr. Gardner alleged that his employer discriminated against him by

subjecting him to a barrage of reprimands, creating a hostile work environment

and constructively discharging him. These allegations all arose out of the

negative reviews of his store from September 2006 to February 2007.

      The district court first addressed Mr. Gardner’s race discrimination claim,

which it considered in three parts: disparate treatment, constructive discharge,

and hostile work environment. The district court concluded that Mr. Gardner had

not established a prima facie case of discrimination because he had failed to show

that he was treated differently than other similarly situated employees. The

district court further determined that, even if Mr. Gardner had established his

prima facie case, Kmart had established legitimate, non-discriminatory reasons

for reprimanding Mr. Gardner by documenting the poor conditions of his store

and the complaints of his employees, and Mr. Gardner had failed to show those

reasons were pretextual. The district court concluded that Mr. Gardner’s

constructive discharge claim failed for similar reasons. Finally, the district court

determined that Mr. Gardner had failed to show that he had been subjected to a

hostile work environment.

      With respect to Mr. Gardner’s age discrimination claim, the district court

concluded that Mr. Gardner had failed to establish a prima facie case because he

had not presented evidence to create a genuine issue of fact on the second

                                         -4-
element, which requires a showing that he was performing satisfactory work. The

district court further determined that, even if Mr. Gardner had met his prima facie

case, he would not prevail on his age discrimination claim because he had failed

to show that Kmart’s non-discriminatory reasons for its actions were pretextual.

      As for his retaliation claim, Mr. Gardner alleged he was told by Kmart

management that the negative reviews of his store would cease if he fired certain

older workers at the store. He contends Kmart retaliated against him for refusing

to fire the older employees by continuing to give him negative reviews and

constructively discharging him. The district court concluded that Mr. Gardner

had not set forth a strong prima facie case, but assuming that it was sufficient, the

district court proceeded to consider Kmart’s proffered reasons for its actions. As

with the race and age claims, the district court concluded that Kmart had set forth

legitimate, non-discriminatory reasons for its actions: namely, Mr. Gardner’s

performance problems. As the district court noted: “The record shows that

[Mr. Gardner] was given numerous directives to improve his performance because

his store was not meeting established standards.” R. Vol. 2 at 209. The district

court further explained that Mr. Gardner had again failed to provide any evidence

to suggest that Kmart’s proffered reasons were unworthy of belief.

      Next, the district court considered Mr. Gardner’s claim that he was

discharged in violation of Oklahoma public policy based on the Oklahoma

Anti-Discrimination Act (OADA). As the district court explained, the OADA

                                          -5-
does not provide a private right of action for any protected group other than

victims of handicap discrimination, but it can serve as a statutory basis for a

common-law tort claim by an at-will employee who was constructively discharged

in violation of pubic policy. See Burk v. K-Mart Corp., 770 P.2d 24, 28-29

(Okla. 1989). The district court concluded, however, that because all of Mr.

Gardner’s federal discrimination and retaliation claims failed as a matter of law,

“it would be inconsistent for [Mr. Gardner] to be allowed to proceed on a Burk

tort claim when he is not permitted to proceed to trial on federal statutory claims

based upon the same underlying facts and policies.” Id. at 212-13.

      Finally, the district court considered Mr. Gardner’s claim for negligent

supervision, which requires a finding that the actions of his supervisors caused

him harm. Mr. Gardner alleged that Kmart was liable under this theory because

certain individuals at Kmart discriminated and retaliated against him by issuing,

or causing others to issue, the negative evaluations, notices and performance

plans that led to his resignation or alleged constructive discharge. But the district

court concluded that “[s]ince the Court has found that Defendants are entitled to

summary judgment on all of [Mr. Gardner’s] underlying claims that Defendants

discriminated and retaliated against him, Defendants may not be found liable

based on the hiring, supervision, or retention of the individuals who allegedly

harmed [him].” Id. at 214.




                                          -6-
                                          IV.

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

applying the same legal standard used by the district court.” Garrison v. Gambro,

Inc., 428 F.3d 933, 935 (10th Cir. 2005) (quotation omitted). “When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party.” Id. (quotation omitted).

      Mr. Gardner was represented by counsel in the district court, but he is

proceeding pro se on appeal. Liberally construing his pro se briefs, see

Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998), Mr. Gardner challenges

the district court’s decision based on his contention that there are material facts in

dispute regarding his performance and the circumstances surrounding his

retaliation, race discrimination, and age discrimination claims. Having reviewed

the briefs, the record, and the applicable law, we conclude that Mr. Gardner has

not shown any reversible error.

      We therefore AFFIRM the judgment of the district court for substantially

the same reasons stated in the district court’s order dated January 5, 2010.


                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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