                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                    January 6, 2016
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
ANTHONY LEWIS,

       Plaintiff-Appellant,

v.                                                 No. 15-3188
                                        (D.C. No. 2:15-CV-02322-JAR-TJJ)
TWENTY-FIRST CENTURY BEAN                            (D. Kan.)
PROCESSING,

       Defendant-Appellee.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

      Mr. Anthony Lewis sued his former employer, Twenty-First Century

Bean Processing, after he was terminated. He alleged both age and race

discrimination. The district court granted Twenty-First Century’s motion

for summary judgment on both claims, and we affirm.




*
      The parties have not requested oral argument, and we do not believe
oral argument would be helpful. As a result, we are deciding the appeal on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
I.   Mr. Lewis’s Probationary Status and Firing

     Mr. Lewis, an African-American male who was 47 years old at the

relevant times, applied for a job with Twenty-First Century. After an

interview, Mr. Lewis was hired for a warehouse job, subject to a 30-day

probationary period. At the end of the probationary period, Mr. Lewis was

to be evaluated to determine whether he could remain an employee.

     Of the 25 work days in Lewis’s probationary period, he was absent 4

days, found sleeping twice, and observed more than once texting and

talking on a personal cellphone. His supervisor’s warnings about sleeping

and using his cellphone on the job were met with argument. These lapses

implicated Twenty-First Century’s written policy, which informed

employees that unsatisfactory conduct or unacceptable behavior (such as

failure to report to work regularly and punctually) could result in

termination. Based on these infractions, Twenty-First Century fired Mr.

Lewis after the end of the probationary period. Mr. Lewis’s position was

filled by an older employee.

     Mr. Lewis sued Twenty-First Century, alleging age discrimination

under the Age Discrimination and Employment Act, 29 U.S.C. §§ 621-634

(2012), and race discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-2000e-17 (2012). The district court granted

Twenty-First Century’s motion for summary judgment on both claims.



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       Mr. Lewis appealed. Because Mr. Lewis proceeds pro se, we construe

his arguments liberally but “do not assume the role of advocate.” See

United States v. Viera, 674 F.3d 1214, 1216 n.1 (10th Cir. 2012) (quoting

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).

II.    Our Standard of Review

       We engage in de novo review, applying the same standard that the

district court applied and viewing the evidence in the light most favorable

to Mr. Lewis. McBride v. Peak Wellness Ctr., Inc., 688 F.3d 698, 703 (10th

Cir. 2012). Summary judgment was appropriate if “there [was] no genuine

dispute as to any material fact and [Twenty-First Century was] entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.   The Burden-Shifting Framework

       When a plaintiff alleges discrimination but offers no direct evidence

of discrimination, the district court considers summary judgment motions

under the McDonnell Douglas Corp. v. Green burden-shifting framework.

411 U.S. 792, 802–805 (1973). Under this framework, the plaintiff bears

the initial burden to establish a prima facie case of discrimination.

Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007). If a

plaintiff establishes a prima facie case, the burden shifts to the defendant

to articulate a facially nondiscriminatory reason for its actions. Id. If the

defendant satisfies that burden, the employee would bear the burden to

prove the defendant’s actions were discriminatory, which the employee

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could do by showing defendant’s “proffered reason is a pretext for illegal

discrimination.” Id. (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 621

(10th Cir. 1994)).

IV.   The Age Discrimination Claim

      Mr. Lewis alleges age discrimination under the Age Discrimination

and Employment Act, 29 U.S.C. §§ 621-634 (2012). Proceeding pro se, Mr.

Lewis appears to be arguing that the district court erred in concluding he

had not established a prima facie case of age discrimination. Because the

district court concluded that Mr. Lewis had not presented any direct

evidence of discrimination, the court analyzed Mr. Lewis’s age

discrimination claim under McDonnell Douglas. In doing so, the court

determined that Mr. Lewis had not established a prima facie case because

he had failed to provide evidence that his work was satisfactory. In our

view, that conclusion was proper. Therefore, we affirm the district court’s

grant of summary judgment to Twenty-First Century on the age

discrimination claim.

V.    The Race Discrimination Claim

      Mr. Lewis also alleges race discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2012). Again

finding no direct evidence of discrimination, the district court analyzed

Mr. Lewis’s claim under the burden-shifting framework of McDonnell

Douglas. The court assumed without deciding that Mr. Lewis had

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established a prima facie case of race discrimination. Thus, the burden

shifted to Twenty-First Century to show a nondiscriminatory reason for

terminating Mr. Lewis.

      As evidence of a non-discriminatory purpose, Twenty-First Century

pointed out that Mr. Lewis had missed too many work days, slept at work,

used his personal cellphone at work, and reacted argumentatively when

warned about his cellphone usage. After finding that any one of these

policy violations could serve as a nondiscriminatory reason for the firing,

the court placed the burden on Mr. Lewis to show by a preponderance of

the evidence that Twenty-First Century’s explanation was pretextual. The

district court concluded that Mr. Lewis was unable to meet this burden, and

we agree for substantially the same reasons stated by the district court.

VI.   Conclusion

      We affirm the award of summary judgment to Twenty-First Century.


                                   Entered for the Court


                                   Robert E. Bacharach
                                   Circuit Judge




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