                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                       UNITED STATES CO URT O F APPEALS
                                                                    October 24, 2007
                                                      Elisabeth A. Shumaker
                           FO R TH E TENTH CIRCUIT        Clerk of Court



    LER OY M . SM ITH ,

               Plaintiff-Appellant,

     v.                                                    No. 07-3031
                                                    (D.C. No. 05-CV -2149-JW L)
    JOHN E. PO TTER, Postmaster                              (D . Kan.)
    General, United States Postal
    Service,

               Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.


          Plaintiff Leroy M . Smith appeals pro se from the district court’s orders

granting summary judgment in favor of his former employer, the United States

Postal Service (USPS). Through appointed counsel in the district court, he

brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.




*
       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)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§§ 2000e to 2000e-17, and the A ge D iscrimination in Employment Act (ADEA),

29 U.S.C. §§ 621 to 634, alleging race and age discrimination, harassment,

retaliation, a racially-hostile work environment, and constructive discharge. W e

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                  I. Background

      M r. Smith was employed by the USPS at the Bulk M ail Center in Kansas

City, Kansas from 1992 until August 6, 2004, when he went on disability

retirement. He claims that his job difficulties began after he testified against the

U SPS at a union-grievance hearing in August 2001, concerning the request of tw o

postal employees for light-duty assignments during the time they were on

crutches. In October 2002, M r. Smith filed an Equal Employment Opportunity

(EEO) complaint alleging that his supervisors discriminated against him and

harassed him on the basis of his race (African American) in retaliation for

testifying at the union-grievance hearing. The EEO complaint was terminated in

December 2002, and M r. Smith did not file a federal lawsuit based on those

claims.

      M r. Smith alleges that his supervisors continued to intimidate and harass

him. He asserts that younger, female, and Caucasian employees were assigned

better and easier jobs than he, despite his more senior status, and that new

supervisors also harassed him based on what his former supervisors told them.

M r. Smith further asserts that less senior employees were assigned work that

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should have been assigned to him. In addition, he claims that his supervisor put

his finger in his face and yelled at him and that a different supervisor insisted that

he do a hazardous job for which he was not qualified, and then yelled and

threatened to discipline him for refusing to do it.

      In October 2002, M r. Smith was absent from his work area without

permission on two occasions, so his supervisor issued him a Letter of W arning.

He filed a second EEO complaint in January 2003, claiming that his supervisors

discriminated against him on the basis of race (African American), age (over 40),

and in retaliation for testifying at the union-grievance hearing when they issued

the Letter of W arning. 1 After his second EEO complaint was terminated,

M r. Smith filed a timely law suit in federal district court.

      The district court dismissed some of M r. Smith’s claims for failure to

exhaust administrative remedies and determined that he had exhausted his

administrative remedies on his claims based the October 2002 Letter of W arning.

On the merits, the court held that M r. Smith had not adduced enough evidence to

survive summary judgment.

      On appeal, M r. Smith challenges the district court’s summary-judgment

orders. He also argues that his court-appointed attorney made errors that affected




1
      On November 5, 2002, within 45 days of the Letter of W arning, M r. Smith
requested pre-complaint counseling, as required by 29 C.F.R. § 1614.105(a).

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the outcome and that he was denied his right to a jury trial. In addition, he claims

that postal employees harassed him by interfering with the delivery of his mail.

                                    II. Analysis

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

the record in the light most favorable to the party opposing summary judgment.

M cGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law . Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

                     A. Exhaustion of Administrative Remedies

      Before we address the merits of M r. Smith’s claims, we must determine the

scope of our jurisdiction. Federal courts do not have subject-matter jurisdiction

to review Title VII and ADEA claims not exhausted administratively. Shikles v.

Sprint/United M gmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). “[E]ach discrete

[retaliatory or discriminatory action] constitutes its own unlawful employment

practice for which administrative remedies must be exhausted.” M artinez v.

Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (quotation omitted).

      Of the discrete discriminatory or retaliatory acts M r. Smith identified, one

had been the subject of the first EEO complaint, so the court had no jurisdiction

over it because M r. Smith had failed to file suit within 90 days after the EEO

proceedings were concluded. See 42 U.S.C. § 2000e-5(f)(1) (providing civil

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action may be brought within 90 days of notice of conclusion of EEO complaint).

Two more claims had not been raised in any EEO complaint, so they were

unexhausted and the court likewise lacked jurisdiction. See Shikles, 426 F.3d at

1317 (holding exhaustion of administrative remedies “is a jurisdictional

prerequisite to suit under Title VII” and ADEA). Issuance of the Letter of

W arning was the only discrete act for which M r. Smith exhausted his

administrative remedies. Accordingly, we review the claims based on it.

                               B. Race Discrimination

      A plaintiff asserting a claim that he was terminated on the basis of race

must first establish a prima facie case by demonstrating that (1) “he w as a

member of a protected class,” (2) he was performing his job satisfactorily, and

(3) “he was terminated under circumstances giving rise to an inference of

discrimination.” Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.

2004). If he does so, the burden shifts to the defendant to “articulate a legitimate,

nondiscriminatory reason for the termination that is not facially prohibited by

Title VII.” Id. (quotation omitted). Once the defendant provides such a reason,

the burden shifts back to the plaintiff to demonstrate that the reason is a “pretext

for racial discrimination.” Id.

      The parties dispute only the final step— whether issuance of the Letter of

W arning was a pretext for racial discrimination. M r. Smith contends that he




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demonstrated pretext by showing that similarly-situated Caucasian coworkers

were treated more favorably than he.

      Similarly situated employees are those who deal with the same
      supervisor and are subject to the same standards governing
      performance evaluation and discipline. In determining whether two
      employees are similarly situated, a court should also compare the
      relevant employment circumstances, such as work history and
      company policies, applicable to the plaintiff and the intended
      comparable employees. M oreover, even employees w ho are similarly
      situated must have been disciplined for conduct of comparable
      seriousness in order for their disparate treatment to be relevant.

M cGowan, 472 F.3d at 745 (citations and quotations omitted).

      M r. Smith’s evidence does not demonstrate that the Caucasian employees

were situated similarly to him. He did not show that the Caucasian employees

violated the same w ork rule against leaving the work area without permission,

that the C aucasian employees’ supervisors knew that they had left their work

areas, or that the Caucasian employees had the same supervisor as he. In

addition, M r. Smith’s only evidence of racial animus was his statement that he

had heard from unidentified supervisors and African American employees that

one of his supervisors treated African Americans more harshly than Caucasians.

R. Doc. 84, Attach. G, Ex. 6, at 265. This brief, general reference to a rumor is

insufficient to withstand summary judgment. See Harrison v. Wahatoyas, L.L.C.,

253 F.3d 552, 558 (10th Cir. 2001) (“To w ithstand summary judgment, the

nonmoving party must come forward with specific facts show ing that there is a

genuine issue for trial.” (quotations omitted)). M oreover, the hearsay statements

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by coworkers are inadmissable hearsay that cannot be considered on summary

judgment. Young v. Dillon Cos., 468 F.3d 1243, 1252 (10th Cir. 2006).

Consequently, we conclude that the district court properly granted summary

judgment to the USPS on this claim.

                                   C. Retaliation

      Title VII’s anti-retaliation provision “forbids an employer from

‘discriminat[ing] against’ an employee . . . because that individual ‘opposed any

practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or

participated in’ a Title VII proceeding or investigation.” Burlington N. & Santa

Fe Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2408 (2006) (quoting

42 U.S.C. § 2000e-3(a)). M r. Smith’s retaliation claim was based on his

testim ony at the A ugust 2001 union-grievance hearing regarding whether two

employees should be given light-duty assignments while they were on crutches. 2

      The union-grievance hearing was not protected opposition to discrimination

and therefore not protected by Title VII. Cf. Jones v. U.P.S., Inc., ___ F.3d ___,

2007 W L 2677141, at *14 (10th Cir. Sept. 13, 2007) (“Unless an employer know s

that an employee is engaging in protected activity, it cannot retaliate against the

employee because of the protected conduct, as required by statute.”).

Accordingly, summary judgment was correct on the retaliation claim because it

was not based on protected conduct.

2
      M r. Smith did not allege retaliation based on his first EEO complaint.

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                  D. Racial Harassment and Hostile Environment

        “W hen the workplace is permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment, Title VII

is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and

quotations omitted). M r. Smith testified at his deposition that he did not recall

any of his supervisors making a racially derogatory or inappropriate statement.

R. Doc. 84, Attach. G, Ex. 6, at 407-08. 3 As discussed above, M r. Smith relies on

a rumor that one supervisor treated African Americans more harshly than

Caucasians, but an unsubstantiated rumor is insufficient to resist summary

judgment. To the extent M r. Smith seeks to demonstrate a racially hostile

environment based on allegations that he was treated less favorably than

Caucasian employees, we again hold that he has failed to show that he was

situated similarly to them. W e uphold the summary judgment on this claim, as

well.

                              E. Constructive Discharge

        “A constructive discharge occurs when an employer, through unlawful acts,

makes working conditions so intolerable that a reasonable person in the

3
      In his affidavit opposing summary judgment, M r. Smith claimed that in
August 2004, his supervisor called him “boy,” a remark that can be racially
derogatory. But this incident was not included in the EEO complaint;
accordingly, this court does not have jurisdiction to consider it. See Shikles,
426 F.3d at 1317.

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employee’s position would feel forced to resign.” Exum v. U.S. Olympic Comm.,

389 F.3d 1130, 1135 (10th Cir. 2004). The court employs an objective standard

to determine “the voluntariness of an employee’s resignation.” Id.

      M r. Smith did not allege that the Letter of W arning made his working

conditions intolerable and forced him to resign. Indeed, he continued at his job

for almost two more years. In addition, as discussed above, he had virtually no

evidence of racial harassment. See id. at 1136 n.8 (rejecting plaintiff’s

constructive discharge claim and noting that plaintiff had not “demonstrated any

particular instances of racial harassment or any circumstances demonstrating

racial hostility”). Therefore, summary judgment in favor of the USPS was

appropriate on this claim.

                               F. Age Discrimination

      The ADEA prohibits discrimination “because of [an] individual’s age,”

29 U.S.C. § 623(a)(1), for those who are aged 40 or older, id. § 631(a). A prima

facie case of age discrimination “requires evidence adequate to create an

inference that an employment decision was based on an illegal discriminatory

criterion,” such as age. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,

312 (1996) (quotation and emphasis omitted). For a prima facie case of age

discrimination, a plaintiff must show: (1) he belongs to a class protected by the

ADEA, (2) he w as qualified for his position, (3) he “suffered an adverse

employment action,” and (4) he was “treated less favorably than others,” usually

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that he was replaced by a younger person. Exum, 389 F.3d at 1134; M iller v. Eby

Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005).

      M r. Smith failed to show that the Letter of W arning was an “adverse

employment action” given that he worked for almost two years after he received

it, and he was never demoted, suspended, or terminated as the result of it.

M oreover, although M r. Smith alleged that the Letter of W arning caused him to

be scrutinized more closely and bypassed for favorable job assignments, he has

presented no evidence to support those claims. Summary judgment was therefore

appropriate on the age-discrimination claim.

      G. Ineffective Assistance of Counsel, Jury Trial, Interference with M ail

      For the first time on appeal, M r. Smith asserts that his court-appointed

attorney provided ineffective assistance and that he w as denied his right to a jury

trial. He also now claims that the USPS interfered with his mail delivery. W e

decline to consider these claims because they were not presented to the district

court. See Wilburn v. M id-South Health Dev., Inc., 343 F.3d 1274, 1280

(10th Cir. 2003) (“An issue is waived if it was not raised below in the district

court.”).




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                         III. Conclusion

The judgment of the district court is AFFIRMED.


                                           Entered for the Court

                                           Timothy M . Tymkovich
                                           Circuit Judge




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