                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          April 19, 2006
                            FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    RAYMOND L. MCINTOSH,

          Plaintiff-Appellant-
          Cross-Appellee,

    v.                                             Nos. 05-5097 & 05-5113
                                               (D.C. No. 04-CV-0505-CVE-PJC)
    METROPOLITAN TULSA TRANSIT                           (N.D. Okla.)
    AUTHORITY, an Oklahoma Public
    Trust,

          Defendant-Appellee-
          Cross-Appellant.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.



         Plaintiff Raymond L. McIntosh appeals from the district court’s grant of

defendant Metropolitan Tulsa Transit Authority’s (MTTA’s) motion for summary



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
judgment and denial of his motion to reconsider. 1 (No. 05-5097) MTTA

cross-appeals from the district court’s denial of its request for attorney’s fees.

(No. 05-5113) We review the district court’s summary judgment decision de

novo, applying the same legal standards that the district court applied. Pippin v.

Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1191 (10th Cir. 2006). “Summary

judgment is proper if the evidence, viewed in the light most favorable to the non-

moving party, presents no genuine issue of material fact and the court finds the

moving party is entitled to judgment as a matter of law.” Id. We review the

denials of the motions to reconsider and for attorney’s fees for an abuse of

discretion. Id. at 1192 (Fed. R. Civ. P. 59(e) motion); Ferroni v. Teamsters,

Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146, 1153 (10th Cir.

2002) (attorney’s fees). Applying these standards, we affirm.

      Mr. McIntosh, a former transit station manager for MTTA, filed an action

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through

§ 2000e-17, and the Age Discrimination in Employment Act of 1967, 29 U.S.C.

§§ 621-634, alleging that MTTA unlawfully terminated his employment based on

race and age discrimination. Because he relied on circumstantial evidence to


1
       The district court correctly construed the motion to reconsider as a motion
to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). See Aranda v.
Comm’r, 432 F.3d 1140, 1145 (10th Cir. 2005) (“treat[ing] post-judgment
motions for reconsideration in accordance with the grounds relied upon,
regardless of whether the applicable rule of civil procedure is cited”).

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support his claims, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

provides the appropriate evaluation framework. See Garrett v. Hewlett-Packard

Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

      McDonnell Douglas first requires the aggrieved employee to
      establish a prima facie case of prohibited employment action. . . . If
      the employee makes a prima facie showing, the burden shifts to the
      defendant employer to state a legitimate, nondiscriminatory reason
      for its adverse employment action. If the employer meets this
      burden, then summary judgment is warranted unless the employee
      can show there is a genuine issue of material fact as to whether the
      proffered reasons are pretextual.

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (quotations and citation

omitted).

      Both parties and the district court assumed that Mr. McIntosh presented a

prima facie case of race and age discrimination. In its motion for summary

judgment, MTTA argued that its legitimate, nondiscriminatory reason for

terminating Mr. McIntosh’s employment was that he used poor supervisory

judgment when he fired pepper spray into the women’s restroom at the transit

station in order to force a woman to leave the restroom and the transit station,

thereby exposing MTTA to significant potential expense. We agree with the

district court that this was a legitimate, nondiscriminatory reason for terminating

Mr. McIntosh’s employment.

      Proceeding to the third step, summary judgment was warranted only if

Mr. McIntosh could “show there is a genuine issue of material fact as to whether

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the proffered reason[ was] pretextual.” Id. Mr. McIntosh argued before the

district court and continues to argue on appeal that MTTA’s reason was a pretext

for discrimination because (1) two of the four people making the termination

decision based their decision on the pepper spray incident and additional past

problems with him; (2) a white MTTA employee was not terminated or

disciplined for accidentally using pepper spray; and (3) if the transit station

security guard, a contract employee, had used the pepper spray, he would not have

been fired. We conclude that Mr. McIntosh failed to show a genuine issue of

material fact regarding pretext.

      The record before the district court showed the following uncontradicted,

essential facts. On January 31, 2003, Mr. McIntosh fired pepper spray, which he

obtained from a security guard, into the women’s restroom to force the woman to

exit the restroom and the transit station. That same day, Robert Horey, a transit

station customer, contacted MTTA to find out what had been sprayed in the

transit station, because he had been coughing and having shortness of breath after

being exposed to the spray. The report memorializing this contact also noted that

Mr. Horey commented that the woman “passed out after going across the street.

She was taken away in a[n] ambulance.” Aplt. App. at 27. Mr. McIntosh’s and

another employee’s reports of the incident make no mention of how the woman

left the transit station area. Aplee. App. at 41, 108. Approximately one week


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after the incident, MTTA terminated Mr. McIntosh’s employment because he fired

the pepper spray. Id. at 53. At that time, MTTA clearly had a report in its file

stating that the woman was transported to the hospital by ambulance. See

generally Rivera v. City & County of Denver, 365 F.3d 912, 925 (10th Cir. 2004)

(considering pretext issue by looking only at facts as they appeared to employer).

      Based on these uncontradicted facts, we conclude the reason for

termination was the pepper spray incident. Thus, Mr. McIntosh’s first assertion

that there were other reasons for his termination fails to raise an inference of

pretext for unlawful discrimination. His other two assertions also do not raise an

inference of pretext. The other pepper spray incident was dissimilar, because it

was an accident that occurred between two employees. MTTA had no authority to

fire the security guard, because he was a contract employee. Furthermore,

nothing else in the record suggests that Mr. McIntosh’s termination was for a

discriminatory reason. The district court therefore correctly concluded “that no

reasonable fact-finder could rationally find the MTTA’s reasons for firing

McIntosh unworthy of credence or belief based upon these arguments.”

Aplt. App. at 7. Because there is no genuine issue of material fact concerning




                                          -5-
pretext and because MTTA was entitled to judgment as a matter of law, we affirm

the district court’s decision granting MTTA’s motion for summary judgment. 2

      MTTA argues on cross-appeal that the district court abused its discretion in

denying its motion for attorney’s fees. After reviewing the appellate briefs, the

appendices and the relevant law, 3 we conclude that the district court did not abuse

2
        Mr. McIntosh argued in his motion to reconsider that he did not have an
opportunity to file a surreply to MTTA’s reply, which cited to Mr. Horey’s report
for the first time. Mr. McIntosh concedes, however, that he received this report
on November 20, 2004, more than one month before he filed his response to the
motion for summary judgment on January 3, 2005. This shows that Mr. McIntosh
had access to the report and time to reflect on it before filing his response. And
he knew that MTTA relied in its motion for summary judgment on deposition
testimony indicating that the woman had been transported by ambulance to the
hospital. For these reasons, as well as for the reasons given by the district court
in its order denying the motion to reconsider, we conclude that the district court
did not abuse its discretion in denying the motion. Pippin, 440 F.3d at 1192
(reviewing denial of motion to reconsider for abuse of discretion).

       On appeal, Mr. McIntosh attempts to contradict Mr. Horey’s report
statement that the woman was transported by ambulance with a new affidavit from
Mr. Horey indicating that he did not see an ambulance. This attempt to present
new evidence and raise a factual question comes too late. Because Mr. McIntosh
did not raise this in the district court or do more than merely state in his motion to
reconsider that he could not locate Mr. Horey, we deny Mr. McIntosh’s request to
supplement the record with the new affidavit. Even if we were to allow
supplementation of the record, the result on appeal would be the same, because
MTTA terminated Mr. McIntosh’s employment for the pepper spray incident
regardless of whether the woman was transported to the hospital by ambulance.
Cf. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1145 n.2
(10th Cir. 2000) (deciding proffered materials were not necessary or helpful to
resolution of appeal).
3
       Cross-appellant MTTA failed to include in its appendix copies of the
district court pleadings concerning its motion for attorney’s fees. See
                                                                      (continued...)

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its discretion in denying MTTA’s motion for attorney’s fees. See Ferroni,

297 F.3d at 1153. We affirm the denial for the reasons stated by the district court

in its order filed May 17, 2005. See Aplt. App. at 15.

      The judgment of the district court is AFFIRMED. Mr. McIntosh’s motion

to include an affidavit in his appendix and to refer to it in his brief is DENIED.


                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




3
 (...continued)
Fed. R. App. P. 30(a)(1)(B) (requiring appellant to include relevant pleadings in
appendix); see also 10th Cir. R. 30.1(A)(1) (requiring appellant to “file an
appendix sufficient for considering and deciding the issues on appeal”).

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