                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       July 14, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    SAM BO NE,

                Plaintiff-Appellant,

    v.                                                   No. 05-2354
                                                (D.C. No. CIV-04-121-JH/LCS)
    STATE OF NEW M EXICO, M ARTIN                         (D . N.M .)
    LU TH ER KIN G CO M M ISSIO N,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before T YM KOV IC H, BARRETT, and A ND ER SO N, Circuit Judges.




         Plaintiff Sam Bone appeals the district court’s order granting summary

judgment in favor of the State of New M exico’s M artin Luther King Commission

(Commission) and dismissing his complaint with prejudice. W e exercise

jurisdiction under 28 U.S.C. § 1921 and affirm.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                    Background

      M r. Bone served as the executive director of the Commission as an “exempt

employee” 1 from 1994 until 2003. In November 2002, Bill Richardson was

elected as the governor of New M exico. Although Governor Richardson did not

have the power to directly appoint the Executive Director of the Commission,

plaintiff alleges that he made it clear to the members of the Commission that he

w anted one of his political supporters, Jo Ella Redmon, to replace M r. Bone. A s

events unfolded, the Commission did appoint M s. Redmon to replace M r. Bone.

      Thereafter, M r. Bone filed suit for sex discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e. 2 As the district court found, “[t]he

graveman of [his] complaint is that [the Commission] improperly terminated his

employment because he is male and for the purpose of replacing him with a

woman.” Aplt. A pp. at 308.

      Relying on our decision in Notari v. Denver Water Department, 971 F.2d

585, 589 (10th Cir. 1992), the district court held that M r. Bone failed to present

any evidence concerning the first element of a prima facie case for reverse

discrimination, namely that the C ommission “is one of those unusual employers



1
       The New M exico Personnel Act, N.M . Stat. Ann. 1978, § 10-9-4(C)
excludes “exempt employees” from the protections that the Act generally extends
to other public employees.
2
       M r. Bone also sued for violation of his First Amendment rights. However,
these claims were dismissed by stipulation of the parties.

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who discriminates against the majority.” Id. Therefore, it granted the

Commission’s motion for summary judgment. This appeal followed.

                               Reverse Discrimination

      Generally in a discriminatory discharge case, a plaintiff must establish the

elements of a prima facie case as set forth in M cDonnell Douglas Corp. v Green,

411 U .S. 792 (1973). These elements are: (1) he belongs to a protected class;

(2) he w as qualified for the job; (3) he w as terminated despite his qualifications;

and (4) the job was not eliminated after his discharge. Perry v. Woodward,

199 F.3d 1126, 1135 (10th Cir. 1999). However, because M r. Bone does not

belong to a protected class, the district court was required to follow the standards

set forth in Notari for claims of reverse discrimination. To establish a prima facie

case under Notari, M r. Bone was required to “establish background circumstances

that support an inference that the defendant is one of those unusual employers

who discriminates against the majority,” or to present “indirect evidence

sufficient to support a reasonable probability, that but for [his] status the

challenged employment decision would have favored [him].” Notari, 971 F.2d

at 589-90.

                                 Standard of Review

      W e review the district court’s grant of summary judgment de novo, viewing

the evidence and drawing the reasonable inferences therefrom in the light most

favorable to the nonmoving party. Stover v. M artinez, 382 F.3d 1064, 1070

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(10th Cir. 2004). Summary judgment is appropriate if there are no genuine

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

of law. Id.

                                      Analysis

      M r. Bone’s only argument on appeal concerns whether he had sufficient

notice that he needed to come forward with evidence to prove a prima facie case

of reverse discrimination. 3 He claims that because the parties did not specifically

brief the issue of reverse discrimination, the district court’s order is tantamount to

a sua sponte order for summary judgment. W e disagree.

      In its motion for summary judgment, the Commission argued that M r. Bone

“has a number of problems with the proof requirements for his prima facie case.

The only evidence [he] puts forward is the evidence that he is male and a female

replaced him.” Aplt. App. at 19. W hile the Commission never cited Notari or

any other reverse discrimination cases in its pleadings, it nonetheless squarely

raised the failure to prove a prima facie case in its motion. Thereafter, M r. Bone

was given an opportunity to respond and come forward with his evidence and

arguments to defeat the motion. Aplt. App. at 76-265.

      Nor are we persuaded by M r. Bone’s argument that if he had known that he

needed to prove a prima facie case of reverse discrimination, he “might easily



3
        On appeal, M r. Bone does not dispute the district court’s factual findings or
its interpretation and application of the law of reverse discrimination.

                                         -4-
have been able to gather evidence that, but for his gender, the Commission would

have retained him as executive director.” Aplt. Br. at 10. Setting aside the fact

that it was incumbent on M r. Bone to know what was necessary to prove a

prima facie case, he never explains w hy he failed to ask the district court to

reopen discovery to allow him to gather such evidence, or what this evidence

might have been. Instead, M r. Bone was given ample opportunity to present his

evidence and arguments as to why he was replaced by a female, and the district

court properly found that the “evidence, taken together, is not enough to support

a reasonable inference that either the State of New M exico in general, or the

Commission in particular, is an employer that discriminates against men such that

[M r.] Bone would still be employed as executive director had he been female.”

A plt. A pp. at 311. The judgment is AFFIRMED.

                                                Entered for the Court



                                                Stephen H. Anderson
                                                Circuit Judge




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