                    UNITED STATES COURT OF APPEALS
Filed 1/15/97
                           FOR THE TENTH CIRCUIT




    DONALD E. SPENCER,

             Plaintiff-Appellant,
                                                       No. 96-3087
                                                  (D.C. No. 94-CV-1306)
    v.                                                   (D. Kan.)

    NORTH AMERICAN SALT
    COMPANY, CHUCK NICHOLS,
    JOEL DAVENPORT AND BURL
    DOCKUM,


             Defendants-Appellees.




                           ORDER AND JUDGMENT *



Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.




*
      This order and judgment is not binding precedent, except under the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 William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Appearing pro se, Donald E. Spencer appeals the district court’s order

entering summary judgment in favor of his former employer, North American Salt

Company, and individual managers, Chuck Nichols, Joel Davenport and Burl

Dockum, 1 on his claims of religious discrimination and retaliatory discharge.

Mr. Spencer also contends that the district court erred in assessing costs against

him. Upon consideration of the record and the parties’ written arguments, we

affirm.


                                 BACKGROUND

      Mr. Spencer, a member of the Faith Apostolic Tabernacle Church, was

employed by the company as an engine room operator and general laborer until

his discharge on June 12, 1992. On four occasions between July 1991 and

January 1992, Mr. Spencer needed medical attention to remove a foreign particle

from his left eye. After the fourth injury, the company told Mr. Spencer that he



1
     This order and judgment refers to all appellees, including Mr. Dockum (Mr.
Spencer’s immediate supervisor), Mr. Davenport (the production manager) and
Mr. Nichols (the plant manager) as “the company.”

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must take the additional precaution of wearing goggles over his safety glasses at

all times during the work day or be subject to disciplinary action, including

suspension and discharge.

      On April 8 and April 29, 1992, Mr. Spencer was observed without goggles

and warned in writing that he would be discharged if it happened again. When he

was observed without goggles on June 12, he was discharged.

      Interspersed with the company’s disciplinary measures were Mr. Spencer’s

contacts with federal and state agencies: (1) a claim for medical expenses related

to the fourth eye injury, filed with the Kansas Department of Human Resources,

Division of Workers’ Compensation on April 15; (2) charges alleging asbestos

exposure and unsafe personal protective equipment, filed with the Occupational

Safety and Health Administration (OSHA) on April 30 and May 4 and later

referred to the Mine Safety and Health Administration (MSHA); and (3) a

complaint about a company policy that allegedly required him to work ten minutes

a day without compensation, filed with the Wage and Hour Division of the United

States Department of Labor on May 7. After his termination, Mr. Spencer filed a

charge of religious discrimination with the Equal Employment Opportunity

Commission (EEOC) and the Kansas Human Rights Commission (KHRC).




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      The company decided to pay the workers’ compensation claim for medical

expenses associated with the fourth eye injury. Mr. Spencer had no success with

the remainder of his administrative charges. 2

      Mr. Spencer filed a complaint in the Kansas state courts alleging retaliatory

and discriminatory discharge. The company removed the action to federal court;

conducted discovery, including a lengthy deposition of Mr. Spencer; 3 and moved

for summary judgment. The district court granted the company’s motion and

awarded costs in the amount of $3,397.62.


                                   DISCUSSION

      The district court liberally construed Mr. Spencer’s pleadings and identified

the following claims: (1) religious discrimination in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); (2) retaliatory discharge in

violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3); and (3)

common law retaliatory discharge in violation of Kansas public policy.

      The court analyzed each of the claims according to the burden-shifting

framework of McDonnell Douglas Corp, v. Green, 411 U.S. 792, 802-05 (1973),

2
      The MSHA determined that there was no asbestos or equipment hazard and
the EEOC and the KHRC found no probable cause to support the religious
discrimination claim. The record does not reflect the outcome of the wage and
hour claim.
3
      Mr. Spencer’s deposition took place from December 6th to 8th, 1994 and
on January 31st, 1995.

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then entered summary judgment in favor of the company. The court found that

Mr. Spencer had failed to make a prima facie showing on any claim, in that he

had not come forward with evidence to support an inference of either religious

discrimination or a causal connection between his discharge and his

administrative filings. Alternatively, it determined that the company had

articulated a legitimate reason for the discharge and that Mr. Spencer had not

introduced evidence of pretext.

      On appeal, Mr. Spencer argues that the entry of summary judgment was

erroneous because the motivation for his termination was an issue of material fact

that precluded summary judgment. We review de novo the grant or denial of a

summary judgment motion, applying the same legal standard as the district court.

Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir.), cert denied, 116 S.

Ct. 2552 (1996). Summary judgment is appropriate only if there are no genuinely

disputed material issues of fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P 56(c).

       As Mr. Spencer is making a Title VII claim of religious discrimination, he

must establish a prima facie case by proving: “1) he . . . has a bona fide religious

belief that conflicts with an employment requirement; (2) he . . . informed the

employer of this belief; [and] (3) he . . . was [fired] for failure to comply with the




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conflicting employment requirement.” Toledo v. Nobel-Sysco, Inc., 892 F.2d

1481, 1486 (10th Cir. 1989).

      Mr. Spencer argues that the goggle requirement was absurd and therefore

contrary to his religious duty to secure rightfulness, truth and order. However,

Mr. Spencer failed to show that he informed the company of a connection

between his religious beliefs and his failure to wear goggles during the work day.

The district court properly entered summary judgment on the religious

discrimination claim.

      Similarly, Mr. Spencer produced no facts in support of his contention that

he was discharged in retaliation for complaining to administrative agencies. The

relevant legal theories are retaliatory discharge under § 215(a) of the FLSA for

the report of an alleged wage and hour violation and under Kansas common law

for the workers’ compensation claim and OSHA/MSHA charges.

      The applicable standards are similar for both theories. The Tenth Circuit

applies a “motivating factor” analysis to claims of retaliatory discharge under

§ 215(a). A discharge is unlawful “only if it would not have occurred but for the

retaliatory intent.” McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1483 (10th Cir.

1996), quoting Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir.

1992). In a Kansas common law action for retaliatory discharge, the plaintiff

must establish by a “preponderance of the evidence,” which is “clear and


                                         -6-
convincing in nature, that the defendant, among other things, terminated him or

her in retaliation for fiing a claim under the Workers’ Compensation Act. Ortega

v. IBP, Inc., 874 P.2d 1188, 1196, 1198 (Kan. 1994).

      The district court decided that Mr. Spencer failed to create an evidentiary

dispute on the related issues of causation and pretext. We agree. The facts

alleged by Mr. Spencer provide no inference of a causal connection between his

agency filings and his subsequent discharge. The uncontroverted evidence

demonstrates that Mr. Spencer was discharged for his third breach of the goggle

requirement. When an employee fails to come forward with sufficient evidence to

raise a genuine dispute on an essential element of a retaliatory discharge claim or

the employer’s intent, the district court may properly grant an employer’s motion

for summary judgment. See Koopman v. Water Dist. No. 1, 972 F.2d 1160, 1164

(10th Cir. 1992).

      Mr. Spencer’s final contention on appeal is that the clerk of the district

court’s award of costs to the company was erroneous. See Fed. R. Civ. P.

54(d)(1). He specifically objects to the assessment of $2,938.40 for transcripts of

his three-and-a-half days of deposition testimony.

      The award of costs is affirmed for two reasons. First, Mr. Spencer failed to

preserve the alleged error by requesting judicial review of the action of the clerk.

See Fed. R. Civ. P. 54(d)(1). Second, we review an award of costs only for abuse


                                         -7-
of discretion. See Treff v. Galetka, 74 F.3d 191, 197 (10th Cir. 1996). A trial

court may tax as costs the “[f]ees of a court reporter for all or any part of the

stenographic transcript necessarily obtained for use in the case.” 28 U.S.C.

§ 1920(2). Although the four volumes of deposition transcripts seem to represent

“piling on,” and probably were not necessary to the company’s summary judgment

motion, we cannot conclude that the award of costs amounted to an abuse of

discretion.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED. We exercise our discretion to require the parties to pay their own

costs and expenses on appeal. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




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