                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 27, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARCELLUS H. BAKER,

                Plaintiff-Appellant,

    v.                                                  No. 07-3239
                                                (D.C. No. 06-CV-2168-KHV)
    VIA CHRISTI REGIONAL                                  (D. Kan.)
    MEDICAL CENTER,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Appellant Marcellus Baker sued his former employer, Via Christi Medical

Center, for racial discrimination, sexual harassment, and retaliation under

Title VII of the Civil Rights Act of 1964. The United States District Court for the

District of Kansas granted summary judgment to Via Christi. Mr. Baker appeals




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
pro se, generally arguing that he is entitled to a jury determination on the merits

of his case. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                   I. Background

      Mr. Baker, an African-American, applied in March 2002 for work as a

patient-care technician for Via Christi in Wichita, Kansas. Via Christi’s

employment application required a listing of all criminal convictions and asked

for the reason the applicant left his previous jobs. Mr. Baker stated that “over 16

years ago [he] got in trouble for an assault, but [he] had no trouble with the law

since” and that he left a prior job to start school. R., Doc. 74, Dep. Ex. 14 at 13.

Mr. Baker certified that the information he provided was complete and correct

and that Via Christi could terminate his employment for false statements or

omissions on the application. As Via Christi later learned, the reality was that

Mr. Baker had been convicted of rape and aggravated burglary and discharged

from employment for failing a drug test.

      Via Christi hired Mr. Baker. In fall 2002 and 2003, he was disciplined for

inappropriate conduct toward female co-workers and in February 2005, he was

alleged to have made sexual advances toward a young female employee. As part

of the investigation into the 2005 allegations, Via Christi interviewed Mr. Baker.

He denied the charges and claimed that, in reality, a co-worker had made sexual

comments and overtures to him. He declined to name the individual, however,

unless the interviewer named the witnesses against him. Stating that the

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investigator had already decided he was guilty, Mr. Baker stood up and said he

was leaving to get a lawyer. When warned that his leaving the room would be

considered a resignation, he threw down his badge and walked out the door.

Via Christi fired Mr. Baker the same day, for misconduct and violation of

company policy.

      Mr. Baker subsequently wrote Via Christi a letter alleging that during his

employment he had been sexually harassed, subjected to racial slurs, and

witnessed a staff member’s inappropriate touching of a dying man. Via Christi

responded in writing with a statement that Mr. Baker’s refusal to provide

details of the incidents meant that it could only note the concerns in his file.

Via Christi’s letter also warned of the consequences of violating federal laws of

patient privacy.

      Mr. Baker filed a charge with the Equal Employment Opportunity

Commission (EEOC), complaining of sexual harassment and retaliation. After

receiving notice of his right to sue, Mr. Baker filed suit alleging a sexually hostile

work environment, retaliation for engaging in protected activity, and also

discrimination based on race. Via Christi filed a motion for summary judgment

and Mr. Baker responded with unsupported, accusatory statements. The district

court issued a Memorandum and Order that carefully parsed Mr. Baker’s stated

claims.




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      First, the district court’s order discussed the feasibility of the racial

discrimination claim in light of its omission from the EEOC charge. As the court

indicated, “[a]n employee wishing to challenge an employment practice under

Title VII must first file a charge of discrimination with the EEOC.” Montes v.

Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007) (quotation omitted).

The administrative requirement “serves to put an employer on notice of a

violation prior to the commencement of judicial proceedings. This in turn serves

to facilitate internal resolution of the issue rather than promoting costly and

time-consuming litigation.” Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.

2003). Because Mr. Baker’s EEOC charge did not mention discrimination on the

basis of race, the district court concluded that Via Christi was entitled to

summary judgment on this claim.

      Concerning Mr. Baker’s allegations of sexual harassment, the district court

reviewed the requisite showing for a claim of hostile or abusive work

environment based on sex. To “determin[e] whether an actionable hostile work

environment existed,” a court looks “to all the circumstances, to see if the

workplace was permeated with discriminatory intimidation, ridicule, and insult

sufficiently severe or pervasive to alter the conditions of the plaintiff’s

employment, and if the plaintiff was subjected to this abusive environment

because of [his protected class].” Montes, 497 F.3d at 1169-70 (quotations,

citation, and alterations omitted). Mr. Baker alleged two discrete and unrelated

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incidents: (1) a female co-worker’s grabbing his buttocks in 2003 and (2) the

episode with the dying patient in 2005. Without “trivializ[ing] the difficulty that

may have been subjectively felt by [Mr. Baker],” Somoza v. Univ. of Denver,

No. 06-1488, 2008 WL 162764, *9 (10th Cir. Jan. 18, 2008), the district court

concluded that Mr. Baker had not raised a legally actionable claim of sexual

harassment. Accordingly, the district court determined that Via Christi was

entitled to summary judgment on this claim.

      Mr. Baker’s final claim was that Via Christi retaliated against him for

complaining about sexual harassment during its investigation. The district court

correctly explained that a prima facie case of retaliation requires a showing that

(1) the plaintiff “engaged in a protected activity;” (2) the employer “took an

action that a reasonable employee would have found materially adverse;” and

(3) a “causal connection [exists] between the protected activity and the adverse

action.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir.

2007) (quotation omitted).

      The district court’s ruling focused on the “materially adverse” prong.

Mr. Baker has consistently maintained that Via Christi did not fire him, he quit.

According to Mr. Baker, Via Christi’s response to his letter was the material

action taken against him. And according to the district court “no reasonable

person could find the act of sending the responsive letter an adverse action.”

R., Doc. 80, at 13-14. As a result, the district court concluded, summary

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judgment was appropriate for a failure to demonstrate a prima facie case of

retaliation.

                                  II. Discussion

       This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Bryant v. Farmers

Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). To affirm the district court, we

must satisfy ourselves that the pleadings and admissible evidence demonstrate

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

entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)).

       We “view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.” Id. Nevertheless, “the nonmoving

party must, at a minimum, direct the court to facts which establish a genuine issue

for trial. In the face of a properly supported motion for summary judgment, the

nonmoving party may not rely upon unsupported allegations without ‘any

significant probative evidence tending to support the complaint.’” White v. York

Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986)) (further quotation omitted). “[W]e

liberally construe pro se pleadings” and other papers, but “pro se status does not

relieve [a party] of the obligation to comply with procedural rules.” Murray v.

City of Tahlequah, 312 F.3d 1196, 1199 n. 3 (10th Cir. 2002).




                                        -6-
      Mr. Baker asserts that the district court’s entry of summary judgment was

discriminatory, in that he was deprived of a jury trial due to his race, economic

level, educational background, and criminal record. His claim of entitlement to a

jury trial in order to bring out the facts supporting his claims misapprehends the

purpose of summary judgment, which is to evaluate whether a trial is necessary.

See White, 45 F.3d at 360. Having reviewed the parties’ briefs, the record on

appeal, and the pertinent case law, we perceive no merit in Mr. Baker’s appeal.

We agree with the district court’s thoughtful analysis of the issues presented in

this case. Mr. Baker’s unsupported allegations cannot defeat summary judgment.

                                  III. Conclusion

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED for substantially the same reasons articulated in its order dated

June 13, 2007.

                                               Entered for the Court



                                               Michael R. Murphy
                                               Circuit Judge




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