                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 9, 2008
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court




    TERRY L. DEAN,

                Plaintiff-Appellant,

    v.                                                  No. 07-3060
                                                (D.C. No. 05-CV-1342-MLB)
    THE BOEING COMPANY,                                   (D. Kan.)
    a Delaware Corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.



         Plaintiff-appellant Terry L. Dean is an African-American former employee

of defendant-appellee The Boeing Company who brought suit against Boeing

alleging racial discrimination in violation of Title VII of the Civil Rights Act,

42 U.S.C. §§ 2000e to 2000e-17; the Kansas Acts Against Discrimination Act



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(KAAD), Kan. Stat. Ann. §§ 44-1001 through 44-1044; and 42 U.S.C. § 1981. 1

Mr. Dean alleged disparate treatment discrimination, retaliation, hostile work

environment discrimination, and constructive discharge.

      The district court held in regard to Mr. Dean’s Title VII claims that he had

not exhausted the administrative remedies for his claims that were based on

conduct occurring before June 2003. It also held that Mr. Dean’s § 1981 claims


1
       Under 42 U.S.C. 2000e-2(a)(1), it is unlawful for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin.”

      Under Kan. Stat. Ann. § 44-1009, it is unlawful:

      [f]or an employer, because of the race, religion, color, sex, disability,
      national origin or ancestry of any person to refuse to hire or employ
      such person to bar or discharge such person from employment or to
      otherwise discriminate against such person in compensation or in
      terms, conditions or privileges of employment; to limit, segregate,
      separate, classify or make any distinction in regards to employees; or
      to follow any employment procedure or practice which, in fact,
      results in discrimination, segregation or separation without a valid
      business necessity.

      Under 42 U.S.C. § 1981(a):

      All persons within the jurisdiction of the United States shall have the
      same right in every State and Territory to make and enforce
      contracts, to sue, be parties, give evidence, and to the full and equal
      benefit of all laws and proceedings for the security of persons and
      property as is enjoyed by white citizens, and shall be subject to like
      punishment, pains, penalties, taxes, licenses, and exactions of every
      kind, and to no other.


                                         -2-
based on conduct occurring before November 14, 2001, were barred by the

applicable statute of limitations. The district court then granted Boeing summary

judgment on Mr. Dean’s remaining claims. Mr. Dean appeals from this grant of

summary judgment, arguing that the district court erred by (1) failing to consider

incidents of discrimination occurring prior to November 14, 2001, as background

evidence of later discrimination, and (2) by granting summary judgment as to

Mr. Dean’s claims for disparate treatment discrimination, retaliation, hostile work

environment, and constructive discharge. Exercising our jurisdiction under

28 U.S.C. § 1291, we affirm.

                                      I. Analysis

      The facts of this case need not be repeated in full here as they are well

known to the parties and are set forth in detail in the district court’s January 25,

2007, memorandum and order.

A. Four-Year Statute of Limitations for § 1981 Claims

      In his first point, Mr. Dean agrees that under the applicable four-year

statute of limitations, discriminatory actions of Mr. Petsche, his manager, that

occurred prior to November 14, 2001, could not serve as the bases for

independent discrimination claims. But he argues that the district court failed to

consider these earlier incidents as “background evidence” supporting his claim

that the non-discriminatory reasons that Boeing advanced for the adverse

employment actions that were properly at issue, were mere pretext.

                                          -3-
      There are two specific incidents that occurred between Mr. Petsche and

Mr. Dean that are at issue. In 1998, Mr. Petsche refused to authorize time off

without pay for Mr. Dean so that he could visit a friend who was dying of cancer.

Also in 1998, Mr. Dean received a corrective action memorandum (CAM) for

leaving his work area and retrieving something from his car without clocking out.

      It is clear that in the pretrial order Mr. Dean treated these as separate

incidents of discrimination and separate claims. In the memorandum supporting

its motion for summary judgment, Boeing argued that these two claims of

discrimination were barred by the four-year statute of limitations applicable to

race discrimination claims under 42 U.S.C. § 1981. In his response to that

motion, Mr. Dean agreed that these events occurred outside the applicable

four-year statute of limitations, but argued that “[e]vidence of prior

discriminatory conduct outside the statute of limitations window may still be

introduced and considered as evidence tending to establish discrimination.” Aplt.

App., Vol. I at 334. Mr. Dean cited National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002), as support for this argument.

      The district court held that Morgan was inapplicable because that case

“discussed using prior acts only for the sake of ‘background evidence,’ not as

separate acts of discrimination as [Mr.] Dean seeks to do.” Aplee. Supp. App.

at 10 (quoting Morgan, 536 U.S. at 113). The court went on to hold that

equitable doctrines such as the continuing violations doctrine that might be

                                          -4-
utilized in regard to a Title VII action were not applicable when considering

Mr. Dean’s § 1981 claims. The court therefore held that Mr. Dean’s § 1981

claims for conduct that occurred outside the four-year statute of limitations could

not be considered and granted summary judgment as to those claims.

      On appeal, Mr. Dean claims that he never sought to use these claimed

incidents of discrimination as compensable claims but was only presenting them

as “background evidence” and that the district court should have considered them

as such. The problem with this argument is that there is nothing to show that the

court did not consider these incidents as background evidence. The district court

discussed these incidents in as much detail as any of the other claimed incidents

in the factual section of its decision. See Aplee. Supp. App. at 3-4. Based on

those facts, the district court noted Mr. Dean tried to prove pretext by

“continuously pointing to [Mr.] Petsche’s apparent dislike of [Mr.] Dean.”

Id. at 16. We will not simply assume that the district court gave no consideration

to these incidents in reaching its decision especially in light of their limited

relevance to the adverse employment actions actually at issue.

B. Race Discrimination–Disparate Treatment

1. October 2003 CAM

      In his second point on appeal, Mr. Dean argues that the district court erred

in holding that he had not proven a prima facie case of disparate treatment race




                                          -5-
discrimination in regard to his receipt of a corrective action memorandum (CAM)

in October 2003. Mr. Dean missed several days in September and October of

2003. He alleged that these absences were due to problems that he was still

experiencing from a 1999 workplace injury. He presented a note from his

personal physician to excuse these absences. Mr. Petsche was told by Boeing’s

human resources department that since Mr. Dean had exhausted his Family

Medical Leave Act (FMLA) leave for 2003 he would need to see a Boeing

authorized physician in order for the absences to be considered excused due to a

previous workplace injury. Mr. Dean went to see such a physician but claims he

was told by the physician that he simply needed to leave his x-rays for

examination. The human resources department became aware that Mr. Dean had

not actually met with the physician and the employee handling the request

instructed Mr. Petsche to treat the absences as unexcused. 2 Mr. Petsche therefore

prepared the October 2003 CAM for the unexcused absences. Mr. Dean claims

the refusal to treat the absences as excused, despite the fact that he was acting at

the request of the physician when he left his x-rays, was racially motivated.

      We first note that “[c]ases establish that, in racial discrimination suits, the

elements of a plaintiff’s case are the same, based on the disparate treatment

elements outlined in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)],


2
      Mr. Petsche refused to clock the absences as vacation because Mr. Dean
was under a previously issued CAM regarding attendance.

                                         -6-
whether that case is brought under §§ 1981 . . . or Title VII.” Drake v. City of

Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). Further, these same

standards apply to the KAAD. See Swackhammer v. Sprint/United Mgmt. Co.,

493 F.3d 1160, 1166 n.7 (10th Cir. 2007).

      Under McDonnell Douglas, if the plaintiff can establish a prima facie
      case of discrimination or retaliation, the burden shifts to the
      defendant to show a legitimate non-discriminatory or non-retaliatory
      reason for the adverse employment action. If the defendant meets
      this burden, the burden shifts back to the plaintiff to demonstrate that
      the defendant’s proffered reason is pretext.

Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006) (internal

citation omitted). Further, to make out a prima facie case of discrimination,

Mr. Dean has to show “(1) membership in a protected class, (2) [an] adverse

employment action, and (3) disparate treatment among similarly situated

employees.” Orr v. City Of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).

Mr. Dean’s burden at this stage is “not onerous” and he is only required “to raise

an inference of discrimination, not dispel the non-discriminatory reasons

subsequently proffered by the defendant.” Id. (quotations omitted).

      The district court held that the October 2003 CAM constituted an adverse

employment action, but that Mr. Dean had not shown disparate treatment among

similarly situated employees. The district court noted that Mr. Dean admitted that

he was not aware of any employee who had failed to see a Boeing-authorized




                                         -7-
workers compensation physician and then still had an absence excused as the

result of a work-related injury.

      Mr. Dean argues that it is not unusual that he could not show another

employee receiving more favorable treatment in a similar situation considering

the small number of employees that worked in the master mix area and the

unusual nature of his request. But he argues that a reasonable jury could still

have found that he was issued the October 2003 CAM on account of his race

considering Mr. Petsche alleged historical propensity to harass him and treat him

unfairly. But here the affidavits of Mr. Petsche and the human resources

employee who was handling this situation make it clear that in requiring

Mr. Dean to see an approved physician and in eventually issuing the October

2003 CAM, Mr. Petsche was simply taking direction from the human resources

department. We therefore turn to the second alleged discriminatory action.

2. Clocking of January 2004 Absences

      Mr. Dean missed work on January 6 and 7, 2004. Mr. Dean intended to use

FMLA leave to excuse these absences and Boeing’s policies required that he have

his FMLA paperwork initialed by Mr. Petsche within two business days of

returning to work. Mr. Dean missed this deadline by a number of days and

Mr. Petsche refused to backdate the form since the two-day deadline was spelled

out on the face of the form. Mr. Petsche also refused to clock these unexcused

absences as vacation for the same reason that he had refused to clock Mr. Dean’s

                                         -8-
September and October 2003 unexcused absences as vacation, i.e., because

Mr. Dean was under a previously-issued attendance-related CAM.

       Mr. Dean alleges that he proved a prima facie case of disparate treatment

discrimination in regard to Mr. Petsche’s refusal to clock his January 6 and 7,

2004, absences as vacation. The district court held (1) that a refusal to clock an

absence as vacation did not constitute an adverse employment action, and (2) that

Mr. Dean had not shown disparate treatment in that he had admitted that he was

not aware of any occasion when another employee had been allowed to have an

absence clocked as excused vacation time when that employee was under an

attendance CAM. Mr. Dean argues that the refusal to clock the absences in

question as vacation constituted an adverse employment action and, as to

disparate treatment, incorporates the argument he made as to the October 2003

CAM.

       We need not determine whether the district court erred in finding that no

adverse employment action occurred since we determine that no reasonable jury

could find that Mr. Dean has proven disparate treatment in regard to this incident.

It was undisputed that under the applicable collective bargaining agreement a

request to use vacation credit as sick leave would “not be unreasonably denied”

but such “requests will not normally be approved if the employee is then under a

[CAM] for attendance.” Aplt. App., Vol. I at 214. Therefore, under the

bargaining agreement, the default management position on such requests was that

                                         -9-
they were to be denied. Since Mr. Dean presented no evidence of Mr. Petsche

approving such a request for any worker, and there was no evidence that

Mr. Petsche had ever made any racially disparaging comments, no reasonable jury

could have found that Mr. Dean’s request for special treatment was denied

because of his race.

C. Race Discrimination–Retaliation

      In his third point, Mr. Dean alleges that Mr. Petsche refused to clock the

January 6 and 7, 2004, absences as vacation time in retaliation for an EEO

complaint that Mr. Dean filed in November 2003 regarding the October 2003

CAM. “In order to state a prima facie case for retaliation under McDonnell

Douglas’s first step, [a plaintiff] must demonstrate that (1) [he] engaged in

protected opposition to discrimination; (2) [he] suffered an adverse action that a

reasonable employee would have found material; and (3) a causal nexus exists

between [his] opposition and the employer’s adverse action.” Montes v. Vail

Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

      The district court held that (1) the refusal to clock the absences as vacation

did not constitute an adverse employment action, and (2) even if an adverse

employment action did occur and the court were to infer causation–and therefore

find that a prima facie case of retaliation was proven–from the fact that the

refusal occurred shortly after the complaint was filed, no reasonable jury

could conclude that Boeing’s proffered non-discriminatory justification for

                                         -10-
Mr. Petsche’s refusal to deviate from the collective bargaining agreement was

pretext.

      The stated reason for Mr. Petsche’s refusal to clock the absences as

vacation was because of the terms of the bargaining agreement. In short,

Mr. Dean is not arguing that he was treated less favorably than normal in regard

to the clocking of these absences because of his race, but that Mr. Petsche refused

to treat him more favorably than normal because he is African-American. We

agree that no reasonable jury could find that the reason that Mr. Petsche refused

to take the abnormal step of allowing Mr. Dean to clock his January 6 and 7

absences as vacation was because of his race. Mr. Dean had received attendance

CAMs in September and October of 2003 and there was no evidence that

Mr. Petsche had ever allowed such an action in the past.

D. Race Discrimination–Hostile Work Environment and Constructive Discharge

      Mr. Dean’s final allegations are that the district court erred when it

determined that he did not present sufficient evidence of a hostile work

environment or of a constructive discharge to survive Boeing’s summary

judgment motion. We affirm the district court’s grant of summary judgment




                                        -11-
as to these two points for the reasons set forth in its well-reasoned and persuasive

January 25, 2007, Memorandum and Order.

                                  III. Conclusion

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




                                         -12-
