                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        February 10, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 JUSTIN MOHN,

          Plaintiff - Appellant,

 v.                                                        No. 19-1207
                                              (D.C. No. 1:18-CV-00812-MSK-KMT)
 PROGRESSIVE INSURANCE,                                     (D. Colo.)

          Defendant - Appellee.
                        _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                 _________________________________

      Justin Mohn, appearing pro se, appeals from the district court’s grant of

summary judgment to his former employer, Progressive Insurance, on his claims of

sex discrimination under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e to 2000e-17. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I.    Background

       Progressive Insurance hired Mohn as a customer service representative in

October 2016. New hires such as Mohn participate in Progressive’s customer service

academy program. As part of the academy, Progressive assigns each employee a

coach who provides job-specific training. When the coach and a program manager

conclude that a trainee meets certain job-related metrics, the trainee graduates from

the academy. Trainees typically graduate after participating in the academy for 10 to

12 weeks. Mohn graduated in 13 weeks, finishing in March 2017.

       In the summer of 2017, Mohn sought permission to apply for other positions

with Progressive despite the company’s policy that customer service representatives

work with the company for a least a year before applying to switch positions. One of

Mohn’s supervisors declined his request to apply for a position with Progressive’s

information technology service desk because Mohn’s description of his experience

did not “match what [was] minimally required” for the job. R. Vol. 2 at 316.

       Mohn did apply for a senior copywriter position in July 2017. The “minimum

requirements” for this position included possessing either a bachelor’s degree in a

writing-related field such as journalism or “8 years’ creative writing experience and

experience as a copywriter.” Id. at 331. Mohn admits that he did not meet these

minimum requirements. Progressive did not transfer him to this position.

       Mohn also applied for a legal assistant position in August 2017 despite lacking

any training in the field or prior experience as a legal assistant. Progressive did not

transfer him into this position either.

                                             2
       On August 5, 2017, Mohn kicked open the doors to Progressive’s facilities.

While Mohn characterized the act as “open[ing] the door with [his] foot,” “because

[he] used to play soccer,” id. at 285, he does not dispute that the act occurred.

Progressive placed him on administrative leave on August 17 and fired him on

August 24, 2017. The company stated that it fired Mohn due to “his refusal to

comply with Progressive’s code of conduct which includes, but is not limited to,

Mr. Mohn kicking open our facility doors.” Id. at 153.

       Mohn then filed this suit, alleging Progressive engaged in sex discrimination

by delaying his graduation from the academy, refusing to promote him, and

terminating him. Prior to the discovery cutoff, Mohn filed a motion for summary

judgment in January 2019. In his motion, he complained that Progressive had not

adequately responded to all his discovery requests and asked that the court compel

additional discovery. But he nonetheless “contend[ed] all the necessary factual

issues [were] settled or so one-sided they need not be tried, for there [were] no

important facts still in dispute.” Id. at 64. 1

       After conducting additional discovery, Progressive filed a cross-motion for

summary judgment in April 2019. Mohn’s response to Progressive’s motion made

equivocal remarks regarding the need for additional discovery. For example, at one

point he noted that “there are no factual issues remaining to be tried . . . and there are


       1
        Progressive “interpret[ed] [Mohn’s] motion as being both a Motion for
Summary Judgment and a Motion to Compel Discovery.” R. Vol. 2 at 127. While
Progressive maintains this interpretation on appeal, we note that Mohn never filed a
stand-alone motion to compel discovery.
                                              3
no important facts still in dispute, so Plaintiff is entitled to summary judgment on any

and all claims.” Id. at 358–59. And he observed that while Progressive was

allegedly “hiding certain documents” that would “further support” his claims, he

believed that “the documents already produced” justified granting summary judgment

in his favor such that it would be “a waste of [the] court’s time and resources to

compel discovery of said documents.” Id. at 377. But at another point he argued that

Progressive could not “show[] the absence of a genuine issue of material fact because

[Progressive] ha[d] not adequately produced discovery according to [Mohn’s]

requests.” Id. at 378.

      The district court granted summary judgment to Progressive without ordering

additional discovery and this appeal followed.

                                   II. Discussion

      We review the district court’s summary judgment decision de novo, viewing

the factual record and making reasonable inferences from it in the light most

favorable to the nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199

(10th Cir. 2016). Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “To avoid summary judgment, a party must

produce specific facts showing that there remains a genuine issue for trial.” Branson

v. Price River Coal Co., 853 F.2d 768, 771–72 (10th Cir. 1988) (internal quotation

marks omitted).



                                           4
       We construe Mohn’s pro se filings liberally but do not serve as his advocate.

See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

A. Mohn Did Not Establish a Prima Facie Case of Discrimination Based on
   Progressive’s Delay in Graduating Him from the Academy or Failure to
   Promote Him

       A plaintiff, like Mohn, who relies on circumstantial evidence has the burden

on summary judgment of demonstrating a prima facie case of discrimination. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district court

concluded that Mohn failed to establish a prima facie case of discrimination based on

Progressive’s delay in graduating him from the academy or its failure to promote

him. Mohn does not advance a reasoned argument that the court erred in reaching

this conclusion. 2 Nor does he cite any evidence that undermines it. We affirm the

district court’s ruling on these issues for substantially the same reasons cited by the

district court.

B. Mohn Did Not Establish that Progressive’s Proffered Rationale for Firing
   Him Was Pretextual

       The district court assumed, without deciding, that Mohn established a prima

facie case of discrimination with respect to his termination. Applying the McDonnell


       2
        Mohn does claim the district court erred by requiring him to produce a
female comparator to establish his prima facie case. But the district court did not
impose such a requirement. It instead noted that proffering comparator evidence is
“[o]ne of the ways that an employee can demonstrate circumstances giving rise to an
inference of discrimination.” R. Vol. 2 at 417. And the district court found Mohn’s
proffered comparator evidence wanting because it did not establish that the females
Mohn identified were “similarly-situated to [Mohn] in any relevant category of
performance.” Id. at 417–18.

                                            5
Douglas burden-shifting framework, 3 the district court noted Progressive’s proffered

non-discriminatory rationale for firing Mohn—violating its code of conduct by

kicking open the doors to their office, among other things. And the district court

rejected Mohn’s claims of pretext.

      Mohn argues that the district court erred by failing to consider how the

circumstances surrounding his termination support an inference that Progressive’s

stated rationale was pretextual. These include: (1) Progressive’s shifting rationale;

(2) Progressive’s delay in providing its rationale; (3) the company’s deviation from

its policy of providing a warning or discipline before termination; (4) a factfinder’s

potential disbelief of Progressive’s reason for his termination; (5) Mohn’s practice of

often kicking open doors without punishment before he made claims of

discrimination; (6) Progressive’s policies that do not support termination for similar

acts; and (7) Progressive’s shoddy investigation. But Mohn fails to cite record

evidence that establishes any of these facts. 4 We therefore reject his argument. Cf.

Bekkem v. Wilkie, 915 F.3d 1258, 1268 (10th Cir. 2019) (“Mere conjecture that the


      3
         Under the McDonnell Douglas burden-shifting framework, if the plaintiff
establishes a prima facie case of discrimination, the burden shifts to the defendant to
articulate a legitimate non-discriminatory reason for its adverse action. See
McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts
back to the plaintiff to show that the defendant’s proffered rationale was pretextual.
See id. at 804
       4
         The only evidence Mohn cites relates to his claim that company policy
requires a warning or discipline before termination. But the document he cites states:
“Nothing contained in this policy precludes immediate termination in cases of serious
violations of our Code of Business Conduct and Ethics or Our Workplace Policies.”
Supp. R. at Progressive 0000109.

                                           6
employer’s explanation is a pretext for intentional discrimination is an insufficient

basis for denial of summary judgment.” (internal quotation marks omitted)).

       Mohn further appears to argue that the district court erred by failing to apply

the “pretext plus” doctrine, which requires a plaintiff to provide “additional, direct

evidence of a discriminatory motive.” Neal v. Roche, 349 F.3d 1246, 1249 (10th Cir.

2003) (emphasis added). 5 We rejected the pretext plus doctrine in Randle v. City of

Aurora, 69 F.3d 441, 451 (10th Cir. 1995), and the district court therefore did not err

by failing to apply it.

C. The District Court Did Not Err by Granting Summary Judgment to
   Progressive Before Ruling on Mohn’s Embedded Motion to Compel

       Mohn argues that the district court erred by granting summary judgment to

Progressive without ruling on the motion to compel that he embedded in his motion

for summary judgment. “We review . . . the district court’s . . . decision to grant

summary judgment before ruling on [Mohn’s] motion to compel for an abuse of

discretion.” Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1242

(10th Cir. 2010).

       Rule 56(d) states that if a party opposing a summary judgment motion “shows

by affidavit or declaration that, for specified reasons, it cannot present facts essential

to justify its opposition,” the court may deny the motion, defer consideration pending



       5
        While Mohn states that “the pretext-plus rule should have been applied,”
Aplt. Opening Br. at 25, he does not advance a reasoned argument for its application.
Given that the doctrine would impose a more stringent standard on Mohn, we
question whether he intended to press this argument in his pro se brief.
                                            7
additional discovery, or take other appropriate actions. The affidavit “must explain

why facts precluding summary judgment cannot be presented,” “identify[] the

probable facts not available and what steps have been taken to obtain these facts,”

and “explain how additional time will enable him to rebut movant’s allegations of no

genuine issue of fact.” Comm. for the First Amendment v. Campbell, 962 F.2d 1517,

1522 (10th Cir. 1992) (internal quotation marks omitted). “[W]here a party opposing

summary judgment fails to take advantage of the shelter provided by Rule 56[(d)] by

filing an affidavit, there is no abuse of discretion in granting summary judgment if it

is otherwise appropriate.” Campfield v. State Farm Mut. Auto. Ins., 532 F.3d 1111,

1125 (10th Cir. 2008) (internal quotation marks omitted). 6 An “unverified assertion

in a memorandum opposing summary judgment does not comply with Rule 56[(d)]

and results in a waiver.” Comm. for the First Amendment, 962 F.2d at 1522.

      Mohn did not file a Rule 56(d) affidavit and his pro se status does not excuse

this failure, see Garrett, 425 F.3d at 840. In any event, his unverified response to

Progressive’s motion for summary judgment equivocated regarding whether he

sought additional discovery. The district court therefore did not abuse its discretion

in granting summary judgment to Progressive before ruling on the discovery issues

that Mohn raised in his summary judgment motion.




      6
         Before 2010, Rule 56(d)’s provisions were codified as Rule 56(f). See
Fed. R. Civ. P. 56(d) advisory committee’s note to 2010 amendment (“Subdivision
(d) carries forward without substantial change the provisions of former subdivision
(f).”).
                                           8
D. Mohn Does Not Develop Any Other Arguments on Appeal

      Mohn also purports to appeal from the district court’s rejection of his motions

to amend his complaint. We review the “decision to deny leave to amend a

complaint for an abuse of discretion.” Hertz v. Luzenac Grp., 576 F.3d 1103, 1117

(10th Cir. 2009). Mohn fails to articulate how the district court abused its discretion

with respect to these matters. We therefore decline to review these rulings. See, e.g.,

Kelley v. City of Albuquerque, 542 F.3d 802, 819 (10th Cir. 2008) (“[P]erfunctory”

allegations of error that “fail[] to frame and develop an issue” are insufficient “to

invoke appellate review.” (internal quotation marks omitted)).

                                   III. Conclusion

      For the reasons stated above, we affirm the district court’s grant of summary

judgment to Progressive Insurance and its denial of summary judgment to Justin

Mohn. Progressive Insurance’s motion to supplement the record is denied as moot in

light of the court’s January 24, 2020 order supplementing the record.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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