                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 30 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CHESTER A. THOMAS,

                Plaintiff-Appellant,

    v.                                                   No. 01-3167
                                                 (D.C. No. 98-CV-1491-MLB)
    CITY OF WICHITA, a municipal                           (D. Kan.)
    corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.


         Appellant Chester Thomas, appearing pro se, challenges the district court’s

decision granting summary judgment in favor of appellee City of Wichita (“the

City”) on his claims of discrimination based on disability under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–213, and based on race under



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). We have

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

                                           I

      On August 12, 1992, Thomas, then a firefighter for the City, injured his

right arm and shoulder while attempting to lift a large heart-attack patient. On

January 11, 1993, Thomas signed a resignation stating that he was physically

unable to perform his duties as a firefighter. He had been told by his superiors

that because there was no position that could accommodate his new limitations, he

would either have to resign or be fired.

      Thomas subsequently applied for permanent partial work disability benefits.

Michael Payne, risk manager for the City of Wichita, denied his request, stating

that because Thomas had resigned voluntarily, he was excluded from benefits

under Kansas’s worker’s compensation law.

      An administrative law judge (“ALJ”) heard Thomas’s benefits claim, and

concluded that Thomas was entitled to benefits based on a 55% disability. This

determination was appealed by the City, and the Worker’s Compensation Appeals

Board reduced the award to benefits based on a 47.6% disability. A settlement

was then reached by the parties for a lump-sum payment representing the total of

Thomas’s benefit payments less 10%.




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      On September 1, 1998, Thomas filed complaints with the Equal

Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights

Commission alleging that the City had discriminated against him based on his

disability when it forced him to resign and based on his race in its handling of his

claim for worker’s compensation benefits. These agencies declined to pursue his

claims. On December 22, 1998, Thomas filed this suit.

      The City moved for summary judgment on both the ADA and the Title VII

claims, arguing that because Thomas resigned in 1992 but did not file his

administrative complaints until 1998 he was well outside the 300-day time limit

and his claims were barred.   1
                                  In response, Thomas stated that the continuing

violation and equitable tolling doctrines applied to excuse this defect.

      The district court granted the City’s motion with respect to Thomas’s claim

of disability discrimination, concluding that no continuing violation had been

alleged because the only action purportedly based on Thomas’s disability was his

forced resignation in 1993 and concluding that the doctrine of equitable tolling

did not apply because there was no evidence that the City attempted to conceal

facts from Thomas. Finally, the court determined that the race discrimination



1
       Under Title VII’s time limitation requirements, which also apply to ADA
actions, a lawsuit must be filed with the EEOC within 300 days of the
discriminatory action in states, such as Kansas, that statutorily prohibit
discrimination. See 42 U.S.C. § 2000e-5(e)(1).

                                            -3-
claim was not time-barred because the City’s appeal of Thomas’s benefits award,

alleged to be motivated by Thomas’s race, was within the 300-day time limit.

       A second motion for summary judgment on the remaining Title VII claim

was then filed by the City, arguing that (1) Thomas had not established a prima

facie case of discrimination; (2) even if Thomas had established his prima facie

case, the City had proffered legitimate, non-discriminatory reasons for its

treatment of his benefits claim; and (3) Thomas offered no evidence that those

reasons were merely pretextual. The district court agreed, resolving the motion in

favor of the City on the basis that Thomas had failed to show that the City’s

purported reasons for its actions were unworthy of credence or motivated by

Thomas’s race.

                                            II

       Our review of the district court’s decision granting summary judgment is

de novo, and we apply the same standard as the district court.   Adler v. Wal-Mart

Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Summary judgment is warranted

when 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).

       On appeal, Thomas argues that either the continuing violation or equitable

tolling doctrine should apply to excuse his delay in pursuing his ADA claim.

Upon review of the briefs and the record, we conclude that the district court


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correctly determined that neither of these concepts applies. We affirm on this

issue, therefore, for the reasons stated by the district court.

      On his Title VII claim, Thomas argues that the City failed to provide

a legitimate, non-discriminatory reason for appealing Thomas’s benefits award.

In reviewing Thomas’s argument, we note that “[t]he relevant inquiry is not

whether [the employer’s] proffered reasons were wise, fair, or correct, but

whether [the employer] honestly believed those reasons and acted in good faith

upon those beliefs.”   Bullington v. United Air Lines, Inc.   , 186 F.3d 1301, 1318

(10th Cir. 1999).

      There are two linchpins to Thomas’s argument: an internal memorandum

setting forth the City’s strategy for responding to his claim, and the distinction

between the 1993 and 1990 versions of the Kansas worker’s compensation law.

According to Thomas, the City’s reason for denying his claim was not supported

by the 1990 version of the law and the City knew the 1990 rather than the 1993

version applied to his claim.

      First, the interoffice memorandum reveals no racial animus. As the district

court concluded, it merely presents the City’s strategy for resolving Thomas’s

claims on terms favorable to the City. Second, the City’s basis for rejecting

Thomas’s claim appears to be equally tenable under either version of the Kansas

statute. Payne reasoned that an employee who voluntarily resigned could


                                           -5-
theoretically continue to earn a salary comparable to his pre-injury salary. While

this logic was ultimately rejected by the ALJ and the Appeals Board, the

conclusions of these two bodies were not based on any distinction between the

two versions of the law.   Compare Kan. Stat. Ann. § 44-510e(a) (1990)

(disallowing benefits where employee is able to earn “comparable” wages)       with

Kan. Stat. Ann. § 44-510e(a) (1993) (disallowing benefits where employee is able

to earn 90% of previous salary). Rather, the critical issue was the ALJ’s finding

that Thomas had not resigned voluntarily, but had been forced to resign.

      Ultimately, the proceedings before the ALJ and Appeals Board involved

legitimate disagreements among the various physicians and other witnesses

regarding the nature and extent of Thomas’s injuries and the events surrounding

his resignation/termination. While Thomas ultimately prevailed on these points,

nothing suggests that the City’s position in these proceedings was frivolous.

Legitimate, non-discriminatory reasons were offered by the City for appealing

Thomas’s award.

      In light of this showing, the burden fell on Thomas to counter with specific

facts showing that the City’s reasons for its appeal were unworthy of credence or

racially motivated in some way.   See Bullington , 186 F.3d at 1317. This showing

must be made by reference to affidavits, deposition transcripts, or specific

exhibits. See Adler , 144 F.3d at 670–71. Repeated, unsupported assertions by


                                          -6-
Thomas that the City’s actions were based on his race are insufficient to defeat

summary judgment.

       Finally, Thomas also appeals the district court’s denial of his motion for

sanctions based on his allegation that the City had committed fraud, as evidenced

by the above-referenced interoffice memorandum. We review the district court’s

ruling on a motion for sanctions for abuse of discretion.    See Burkhart ex rel.

Meeks v. Kinsley Bank , 852 F.2d 512, 515 (10th Cir. 1988). There is nothing

suggesting that the City’s conduct before the court was fraudulent. Accordingly,

we conclude that the district court did not abuse its discretion.

                                            III

       The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.


                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




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