                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUN 17 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DAVID BOHNETT,

                 Plaintiff-Appellant,
                                                          No. 02-6057
    v.                                              (D.C. No. 01-CV-465-T)
                                                          (W.D. Okla.)
    NORMAN MINETA, Secretary of
    Transportation,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before EBEL , HENRY , and MURPHY , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
       David Bohnett appeals from the district court’s order granting        summary

judgment to defendant, his employer,      on claims of retaliation.   1
                                                                          We have

jurisdiction over this appeal by virtue of 28 U.S.C. § 1291, and we review the

district court’s summary judgment ruling de novo.          Simms v. Okla. ex rel. Dep’t of

Mental Health & Substance Abuse Servs.        , 165 F.3d 1321, 1326 (10th Cir. 1999).

       A prima facie case of retaliation requires a showing that “(1) [plaintiff]

engaged in protected opposition to discrimination; (2) he or she was subject to

adverse employment action; and (3) a causal connection exists between the

protected activity and the adverse action.”         Kendrick v. Penske Transp. Servs.,

Inc. , 220 F.3d 1220, 1234 (10th Cir. 2000). Plaintiff alleged that various actions

by defendant in 1998 constituted adverse employment action, and that they were

motivated by a union grievance he filed prior to 1998 in connection with the denial

of a training opportunity. The district court ruled that only three actions

constituted adverse employment action; plaintiff does not challenge that ruling on

appeal.

       The three adverse actions all resulted from a single incident involving the

computer system in plaintiff ’s division at the Federal Aviation Administration.

Before leaving for vacation,    plaintiff made changes to the computer system,



1
      Plaintiff’s complaint also alleged claims for gender and age discrimination,
but he expressly abandoned those claims before the district court.

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allegedly in an attempt to give another employee access to division files for

backup purposes. As a result of      plaintiff ’s actions, none of the division’s

employees could save information to their files, and they had access to other

employees’ confidential files. When the problem was discovered the next day, it

took several hours to remedy the situation, resulting in a loss of productivity.

Upon his return to work, plaintiff was put on administrative leave pending

investigation. After the investigation, plaintiff was suspended for ten days, and

reprimanded. The district court ruled that these three actions were adverse

employment actions, and assumed that       plaintiff had made out a prima facie case.

However, the court also concluded that      defendant had proffered legitimate

nondiscriminatory reasons for taking these measures, and that        plaintiff had not

demonstrated that these reasons were a pretext for retaliation.

       On appeal, plaintiff raises only two arguments. First, he contends that

defendant did not raise the issue of pretext with “sufficient particularity to require

a detailed response” as to his suspension and reprimand, Aplt. Br. at 8, and asserts

that the district court   sua sponte decided the pretext issue without giving plaintiff

notice. This argument is not persuasive. Under the familiar burden-shifting

framework from McDonnell Douglas Corp. v. Green           , 411 U.S. 792 (1973), after a

plaintiff establishes a prima facie case, the     defendant has the burden to come

forward with legitimate nondiscriminatory reasons for the challenged employment


                                                -3-
action. See Rakity v. Dillon Cos.,   302 F.3d 1152, 1164 (10th Cir. 2002). In this

case, defendant expressly argued that its reasons for taking disciplinary action

were legitimate and nondiscriminatory, discussed those reasons in some detail, and

attached affidavits from   plaintiff ’s supervisor and manager with further

explanation. And, as the district court noted, the attachments to plaintiff’s own

response brief identified the reasons for plaintiff’s suspension and reprimand.

Once an employer identifies a legitimate reason for its actions, the burden shifts to

the employee to demonstrate pretext.       Under these circumstances, we cannot

conclude that plaintiff did not have adequate notice to respond with particularity

regarding pretext as to the suspension and reprimand.

      Plaintiff also argues that he has shown pretext by alleging that other

employees had caused computer malfunction without being investigated, that he

was the only employee in his unit who has been suspended and reprimanded, and

that the disciplinary measures were not warranted. Because     plaintiff has not

demonstrated that he was similarly situated to the other employees he named or

other employees in his unit who were not disciplined, those allegations do not

demonstrate pretext.   See Kendrick , 220 F.3d at 1232 . And his opinion that the

suspension and reprimand were not warranted does not causally connect these

actions to his previous union grievance.     See Kelley v. Goodyear Tire & Rubber




                                             -4-
Co. , 220 F.3d 1174, 1178 (10th Cir. 2000) (stating it is a manager’s perception of

an employee’s conduct that is relevant, not the employee’s subjective evaluation).

      We conclude that the district court correctly granted   summary judgment in

this case. The judgment of the United States District Court for the Western

District of Oklahoma is AFFIRMED.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




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