                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 18, 2008
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 DONALD A SYDNEY,

               Plaintiff-Appellant,                      No. 07-1414
          v.                                             (D. of Colo.)
 CONMED ELECTRICAL SURGERY,                    (D.C. No.06-cv-788-REB-MEH)
 doing business as ASPEN
 LABORATORIES, INC., RODNEY
 DAVIS, and RON SHORES,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Donald A. Sydney brought a lawsuit against his former employer, ConMed

Electrical Surgery, alleging he was fired because of his race in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Civil

Rights Acts of 1866 and 1991, 42 U.S.C. § 1981. Sydney also brought additional


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
claims against supervisors Rodney Davis and Dave Reed and consultant Ron

Shores. The district court granted summary judgment in favor of the defendants

on all claims. Sydney appeals only the granting of summary judgment to ConMed

on the Title VII and § 1981 claims. 1

      We review the district court’s judgment pursuant to 28 U.S.C. § 1291 and

AFFIRM.

                                  I. Background

      ConMed first hired Sydney in 1998 as a service technician and later

transferred him to an engineering technician position in 2001. In April 2005,

Sydney received a performance review for February 2004 through February 2005.

Sydney’s former supervisor Alan Lee and his current supervisor Jim Heller

presented the review and discussed it with him. Lee supervised Sydney during

the period of time covered by the review, and Heller became Sydney’s new

supervisor in April 2005. The review described unsatisfactory performance in

several areas, including productivity, job knowledge and skill, dependability,

initiative, and judgment and analytical ability.


      1
        Although counsel represented Sydney during the district court
proceedings, Sydney filed his appeal pro se. While we construe the filings of a
pro se litigant liberally, this court “will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
Therefore, issues not included in the appellant’s opening brief are waived. Hanh
Ho Tran v. Trustees of the State Colleges in Colo., 355 F.3d 1263, 1266 (10th Cir.
2004).

                                         -2-
      In response to the review, Heller placed Sydney on a performance

improvement plan. Under the plan, Sydney needed to satisfy the following goals:

      Productivity—Complete tasks on time
      Knowledge—Improve Word and Excel skills
      Dependability—Ask questions, seek information, complete tasks
             correctly
      Initiative—Contact [supervisor] Rodney Davis when tasks are
             completed or if waiting
      Judgment—Understand directions

R., Vol. I., Doc. 38, Exhibit A. After three months, Heller terminated Sydney’s

employment because Sydney failed to successfully complete the performance

improvement plan. Heller described the reasons Sydney’s performance did not

satisfy the plan’s requirements in a July 2005 memorandum addressed to Sydney.

During this period, Sydney never complained that any of his supervisors made

racially derogatory comments to him.

      After his termination, Sydney sued. In the amended complaint at issue

here, he alleges the following claims for relief: (1) a Title VII and § 1981 claim

alleging ConMed fired him because of his race; (2) a Title VII claim against

ConMed alleging retaliation; (3) claims against Davis, Shores, and Reed alleging

intentional or negligent infliction of emotional distress, as well as violations of

§ 1981 and the Equal Protection Clause of the Fourteenth Amendment; and (4)

claims against all of the defendants, alleging racial harassment and retaliation.

      The district court granted Sydney’s unopposed motion to dismiss the

second and fourth claims. The court also granted the defendants’ motion for

                                          -3-
summary judgment on the remainder of the claims. Sydney only appeals the

dismissal of the first claim.

                                II. Standard of Review

      We review the district court's entry of summary judgment de novo.

Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310 (10th Cir. 2006).

Summary judgment is only appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). On appeal, we

review the record and make reasonable inferences in the light most favorable to

the nonmoving party. Mickelson, 460 F.3d at 1310. While we view the record in

the light most favorable to the nonmovant, “that party must still identify

sufficient evidence requiring submission to the jury to survive summary

judgment.” Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007).

                                   III. Discussion

       Sydney alleges ConMed wrongfully terminated him in violation of

Title VII and § 1981. “[I]n racial discrimination suits, the elements of a

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

in McDonnell Douglas, whether that case is brought under . . . § 1981 . . . or Title

VII.” Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir. 1991). The

district court properly evaluated both of Sydney’s claims under the McDonnell


                                         -4-
Douglas burden shifting framework. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–04 (1973). 2 Under this framework, the plaintiff must establish a

prima facie case of discrimination. If the plaintiff does so, the burden shifts to

the defendant to show a legitimate, nondiscriminatory reason for the adverse

action. If the defendant succeeds, the burden shifts back to the plaintiff to

demonstrate that the defendant's proffered reason is pretextual. Antonio v. Sygma

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

      A. Prima Facie Case

      To make out a prima facie case of discrimination under Title VII, the

plaintiff must 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).

For the purposes of evaluating the summary judgment motion, the lower court



      2
         In its summary judgment motion, ConMed argued the district court should
apply the McDonnell Douglas rather than the mixed motive framework when
evaluating Sydney’s claims. Sydney did not challenge this argument before the
district court. Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413
F.3d 1163, 1167 (10th Cir. 2005) (holding that arguments not raised in the district
court are waived on appeal). Sydney also did not raise this argument in his
opening brief. “Despite the liberal construction afforded pro se pleadings, the
court will not construct arguments or theories for the plaintiff in the absence of
any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991). “[A]rguments not set forth fully in the opening brief are
waived.” Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.
1998). Therefore, it is unnecessary to reach the question of whether Sydney
could have instead pursued his claims under the mixed motive framework.

                                         -5-
assumed, without deciding, that Sydney satisfied this initial requirement. We

likewise make the same assumption. See, e.g., Aramburu v. Boeing Co., 112 F.3d

1398, 1403 (10th Cir. 1997) (assuming without deciding that plaintiff alleging

violations of Title VII and § 1981 established a prima facie case).

      B. ConMed’s Burden of Production

      The district court properly concluded ConMed satisfied its burden of

showing legitimate, nondiscriminatory reasons for its decision to fire Sydney.

ConMed submitted to the court the July 2005 performance review memorandum

written by Heller and addressed to Sydney. The memorandum lists the following

four reasons why Sydney did not satisfy the goals described in his performance

improvement plan:

      [1] 2450 Loan Curve Measurement—This is a routine task that
      you have performed before. Some of the open circuit voltage
      measurements that you presented were transposed. The data did not
      make sense. There were also two anomalies in the data that you did
      not check. One of them was a measurement error. Your
      Dependability and Judgment was not satisfactory because you should
      have known that these measurements were very irregular and should
      be checked.

      [2] System 5000 GFI Trip Investigation—You were asked to
      investigate the cause of GFI trip with System 5000 use. This task is
      a little more complex than those you performed in month one and
      two, but not as complex as many other tasks performed by
      Engineering Technicians. You had difficulty understanding the task
      and did not follow directions. Rodney Davis advised you that the
      conditions you were testing were not realistic but you continued to
      test them. Your Productivity, Knowledge, Dependability and
      Judgment were not satisfactory because you did not conduct realistic
      tests and failed to change the testing when advised to do so.

                                         -6-
      [3] Alertness—On July 11 at approximately 1:00PM I observed you
      at your desk with your head down and eyes closed. You were
      apparently asleep. When a loud noise occurred you startled and
      opened your eyes. I had observed this same situation on a previous
      day. On at least two other occasions, Rodney Davis has observed
      similar situations. Your Productivity and Dependability were not
      satisfactory because you are expected to stay awake on the job.

      [4] Following Directions—The Research and Development
      Department maintains “V&V” units. These are products that are
      maintained in factory configuration for test purposes. You were
      instructed by Rodney Davis not to make any modifications to these
      units. For the GFI test you modified the System 5000 “V&V” unit.
      You should have used another unit for that purpose. Your
      Dependability was unsatisfactory because you did not follow
      instructions.

R., Vol. I., Doc. 38, Exhibit A. Sydney does not challenge the district court’s

conclusion that ConMed satisfied its burden of production. The burden therefore

shifts back to Sydney to demonstrate that the reasons ConMed proffered for his

termination were pretextual.

      C. Pretext

      Sydney argues he created a genuine issue of material fact on the question of

pretext. In order to establish pretext, a plaintiff must produce evidence of “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence and hence infer that

the employer did not act for the asserted non-discriminatory reasons.” Argo v.

Blue Cross & Blue Shield of Kan., 452 F.3d 1193, 1203 (10th Cir. 2006).

                                        -7-
Because this pretext inquiry is a motive inquiry, the court must examine the facts

as they were perceived by Heller—the person who made the decision to terminate

Sydney. See Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004);

Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996) (“It is the

manager’s perception of the employee’s performance that is relevant, not

plaintiff’s subjective evaluation of his own relative performance.”).

      We agree with the district court that Sydney failed to produce sufficient

evidence to create a genuine issue of material fact regarding whether ConMed’s

justifications were pretextual.

      1. 2450 Load Curve Measurements

      Sydney insists the “measurements [he] made were accurate. There was a

problem with the machine itself, which Ron Shores can attest to.” Aplt. Br. 7.

Sydney waived this argument because he failed to raise it before the district court.

Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167

(10th Cir. 2005) (holding that arguments not raised in the district court are

waived on appeal). Furthermore, Sydney does not cite anything in the record

supporting his claim that Ron Shores agreed that the machine was defective.

Therefore, his argument fails to establish pretext.

      2. System 5000 GFI Trip Investigation

      Sydney insists it was not improper for him to ignore Rodney Davis’s

instructions because Davis was simply a co-worker, and not a superior, at the time

                                         -8-
of the GFI trip investigation. Sydney, however, did not dispute Heller’s assertion

that he improperly conducted the investigation. Therefore, even if Sydney was

not required to follow Davis’s instructions, he has done nothing to dispute the

report that his “Productivity, Knowledge, Dependability and Judgment were not

satisfactory because [he] did not conduct realistic tests and failed to change the

testing when advised to do so.” R., Vol. I., Doc. 38, Exhibit A.

      3. Alertness

      Sydney also challenges Heller’s assertion that he was asleep during work

on multiple occasions. He claims he was on his lunch break when Heller

observed him sleeping. On one of the occasions Davis allegedly observed him

sleeping, Sydney insists he was actually reading a test procedure. Sydney also

claims Davis lied about him sleeping on another occasion in order to get rid of

him because he is black.

      Even if Sydney’s testimony raises factual questions about the allegations of

sleeping during work hours, the district court still properly granted ConMed

summary judgment. When an employer cites multiple nondiscriminatory reasons

for its employment decision, an employee generally “must proffer evidence that

shows each of the employer’s justifications are pretextual.” Tyler v. RE/MAX

Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). However, if one of the

employer’s stated reasons for its action predominates the others, “demonstrating

that reason to be pretextual is enough to avoid summary judgment.” Bryant v.

                                         -9-
Farmers Ins. Exch., 432 F.3d 1114, 1127 (10th Cir. 2005). Sydney fails to

produce sufficient evidence suggesting that the other three legitimate,

nondiscriminatory reasons cited by ConMed were pretextual. Furthermore,

nothing in the record suggests that Sydney was fired primarily because he slept on

the job. Therefore, the district court properly concluded that Sydney’s testimony

did not create a genuine issue of material fact warranting denial of ConMed’s

summary judgment motion.

      4. Following Directions

      Sydney also disagrees with Heller’s claim that he modified a “V&V” unit

despite Davis’s instructions not to make any changes. He insists he merely

“replaced a part which had to be done when these units malfunctioned.” Aplt. Br.

7. Sydney never raised this argument before the district court, and therefore this

issue is waived on appeal. Rosewood Servs., Inc., 413 F.3d at 1167 (holding that

arguments not raised in the district court are waived on appeal). Furthermore,

Sydney does not cite any evidence in the record supporting this claim.

      5. Other Evidence of Pretext

      Sydney makes three additional arguments for why he believes ConMed’s

justifications are pretextual.

             a. Davis’s alleged racial animus

      Sydney argues all four of ConMed’s legitimate, nondiscriminatory reasons

are pretextual because Rodney Davis had input into the decision to fire Sydney,

                                        -10-
and Davis had previously exhibited racial bigotry. Although the July 2005

memorandum refers to complaints made by Davis, Heller also describes his own

first-hand observations about Sydney’s unsatisfactory performance. Sydney fails

to cite anything in the record suggesting that Heller is racially biased or that he

conspired with Davis to wrongfully terminate Sydney’s job.

      The district court also properly concluded Sydney provided inadequate

evidence showing that Davis’s input had been influenced by racial bias. Sydney

cites three reasons why he believes Davis is a racist: 1) Davis listens to Rush

Limbaugh on the radio; (2) in December 2004, Davis allegedly once referred to

Sydney in a racially derogatory manner; and (3) in 2004, Davis remained silent

when consultant Shores hollered out the word “nigger.”

      Sydney fails to cite any authority for the proposition that listening to a talk

show host is evidence of racial bias, nor does Sydney provide any logical

explanation for why such a correlation would exist. Furthermore, Davis’s isolated

remark and “non-reaction” fails to demonstrate pretext. Rea v. Martin Marietta

Corp., 29 F.3d 1450, 1457 (10th Cir. 1994) (“Isolated comments, unrelated to the

challenged action, are insufficient to show discriminatory animus in termination

decisions.”). Sydney in fact never reported the alleged incidents to ConMed’s

human resource office. Nor did he report these allegations in his EEOC

complaint he filed in 2005. In order to establish pretext, “the plaintiff must

demonstrate a nexus between the allegedly discriminatory statements and the

                                         -11-
defendant’s decision to terminate [him].” Id. “A causal nexus can be shown if

the allegedly discriminatory comments were directed at the plaintiff . . . which

resulted in the adverse action taken against the plaintiff.” Id. Nothing in the

record suggests the comment Davis allegedly made in 2004 or his failure to

respond to Shores’ remark caused Sydney’s termination in 2005. Therefore, this

evidence fails to establish pretext.

             b. Sydney’s prior work experience

      Sydney also argues he worked at ConMed for seven and a half years, and

management had never complained about his job performance until Davis began

supervising his work. The mere fact that Sydney’s prior performance reviews

were satisfactory does not create an inference that Heller or Davis misrepresented

his more recent conduct. Valdivia v. Univ. of Kan. Med. Ctr., 24 F. Supp. 2d

1169, 1174 (D. Kan. 1999) (citing Viola v. Philips Med. Sys., 42 F.3d 712,

717–718 (2d Cir. 1994)) (“[A] change in management’s evaluation of an

employee’s performance does not by itself raise an inference of pretext.”).

             c. Lack of training

      Sydney also alleges he received no training for the more complicated tasks

Heller asked him to complete. He failed, however, to produce any evidence

suggesting he received less training than other similarly situated employees. In

the absence of disparate treatment, evidence of inadequate training does not by

itself raise an inference of pretext.

                                         -12-
                                IV. Conclusion

      In sum, Sydney failed to produce sufficient evidence to create a genuine

issue of material fact on the question of pretext. We therefore AFFIRM the

district court’s order granting ConMed summary judgment on Sydney’s Title VII

and § 1981 claims.

                                              Entered for the Court,


                                              Timothy M. Tymkovich
                                              Circuit Judge




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