                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 29, 2007
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 RONNIE R. ROLLAND,

          Plaintiff-Appellant,
                                                        No. 06-1491
 v.
                                            (D.C. No. 06-CV-00810-MJW-BNB)
                                                         (D. Colo.)
 PRIMESOURCE STAFFING, LLC,
 and RENEE RAABE,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.


      Plaintiff-Appellant Ronnie R. Rolland appeals from the district court’s

summary judgment order in favor of Defendant-Appellees Primesource Staffing

LLC (“Primesource”) and Renee Raabe, the owner of Primesource. The district

court concluded that Mr. Rolland did not introduce sufficient evidence to create a



      *
       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) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
triable issue as to whether Primesource unlawfully terminated him because of his

race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., and 42 U.S.C. § 1981. We agree and, exercising jurisdiction pursuant to

28 U.S.C. § 1291, affirm.

I.    Background

      Primesource is a “temporary-to-permanent” employment agency that plugs

temporary employees into positions with Primesource’s client businesses.

Ideally, a Primesource temporary employee who performs well may eventually

receive a permanent position with a Primesource client. Defendant Renee Raabe

owns Primesource. Mr. Rolland is an African-American male; he was originally

hired by Primesource in June 2005.

      On June 14, 2005, Mr. Rolland received (and signed for) a personnel

manual. He did not, however, sign an employment agreement with Primesource.

Pertinently, that personnel manual provides that all employees are hired “at-will.”

Mr. Rolland testified at his deposition that Primesource regularly avails itself of

the privilege of terminating its “at-will” employees without any termination

proceeding or hearing. Primesource’s employment manual also delineates the

firm’s “Equal Employment Opportunity / Unlawful Harassment” policy and “EEO

/ Harassment Complaint Procedure,” as well as a performance quality evaluation

system. Although this system purports to allow Primesource “to gain input on

[the employee’s] job performance and provide [the employee] with valuable,

                                        -2-
positive and/or developmental feedback,” Primesource never provided Mr.

Rolland any written performance reviews during his time with the firm.

      After being hired, Mr. Rolland worked for a number of Primesource’s

clients between June 2005 and January 2006. On January 5, 2006, Primesource

originally instructed Mr. Rolland to report to work the following day at a

company called Woodstream. Sometime later on January 5, a Primesource

employee, Eric Jones, checked Mr. Rolland’s personnel record and decided he

could not assign Mr. Rolland to Woodstream because of Mr. Rolland’s past poor

performance. Mr. Jones instructed another Primesource employee to telephone

Mr. Rolland to tell him not to show up at Woodstream.

      Mr. Rolland apparently never received the message; instead, he arrived at

Woodstream early the next morning and began working. When Mr. Jones and a

second Primesource temporary worker arrived at Woodstream thereafter, Mr.

Jones took Mr. Rolland aside to ask him why he was there. Mr. Jones then

informed Mr. Rolland that he could no longer work for Woodstream because of

Primesource’s concerns about his past performance; he also indicated that Mr.

Rolland should call Michelle Donnel, a Primesource manager, for clarification.

Mr. Rolland did so, and Ms. Donnel informed him that Primesource had opted to

terminate Mr. Rolland’s employment with the company in light of Mr. Rolland’s

poor work performance in past positions.




                                       -3-
      In his pro se suit against Primesource and Ms. Raabe, Mr. Rolland claimed

violations of 42 U.S.C. § 2000e, et seq., (“Title VII”), 42 U.S.C. § 1981, and Mr.

Rolland’s Fifth and Fourteenth Amendment rights under the United States

Constitution. Specifically, Mr. Rolland claimed that the actions of Mr. Jones and

Ms. Donnel, taken without affording Mr. Rolland a disciplinary hearing, notice of

his performance problems or access to his personnel file, were discriminatory. On

Primesource’s motion, the district court granted Primesource summary judgment

on October 18, 2006. Mr. Rolland timely appealed. 1

II.   Discussion

      A. Standard of Review

      “We review de novo the district court’s grant of summary judgment,

applying the same legal standard as the district court.” Lewis v. Circuit City

Stores, Inc., 500 F.3d 1140, 1146 (10th Cir. 2007). Summary judgment is



appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

      1
        After granting Primesource summary judgment, the district court denied
Mr. Rolland’s request for in forma pauperis (“IFP”) status to proceed on appeal.
This court also denied Mr. Rolland IFP status in a published order dated August
7, 2007. See Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1078-79
(holding that “Rolland has failed to show the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal”). That order noted that Mr. Rolland could still opt to pay the appeal
filing fees, id. at 1079, and he has since done so. As such, we granted Mr.
Rolland’s motion to reinstate his appeal on October 19, 2007.

                                         -4-
genuine issue as to any material fact and that the moving party is entitled to

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

      In scrutinizing a summary judgment grant, “we view the evidence and draw

all reasonable inferences therefrom in the light most favorable to the party

opposing summary judgment.” Elliot Indus. Ltd. P’ship v. BP Am. Prod. Co., 407

F.3d 1091, 1107 (10th Cir. 2005) (quoting Martin v. Kansas, 190 F.3d 1120, 1129

(10th Cir. 1999)). Of course, “unsupported conclusory allegations do not create a

genuine issue of fact,” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.

2004), nor does the presence of a “mere scintilla of evidence.” Vitkus v. Beatrice

Co., 11 F.3d 1535, 1539 (10th Cir. 1993).

      B. Merits

      The district court gleaned five claims from Mr. Rolland’s pro se complaint:

four claims under Title VII – for discriminatory discharge, disparate treatment,

negligence, and miscellaneous Title VII violations – and a claim under § 1981. 2

      Because Mr. Rolland offered no direct evidence of discrimination, we

analyze his claim under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Young v. Dillon Cos., Inc., 468

F.3d 1243, 1249 (10th Cir. 2006). Under McDonnell Douglas, the plaintiff bears

      2
        Mr. Rolland is proceeding pro se; as such, this court must “construe[]
liberally” his pleadings. Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Although this court need not “assume the role of advocate” for Mr. Rolland, it
must discern whether the pleadings, reasonably read, state valid claims on which
he could prevail. Id.

                                         -5-
the burden of establishing a prima facie case of racial discrimination based on his

indirect or circumstantial evidence. Young, 468 F.3d at 1249. Assuming the

plaintiff can satisfy this threshold requirement, “the burden shifts to the employer

to articulate some legitimate, non-discriminatory reason for the adverse

employment action.” Id. Thereafter, the burden shifts back to the plaintiff to

demonstrate that the defendant’s proffered justification is pretextual. Id. This

burden-shifting analysis applies both to Title VII and § 1981 claims. See Perry v.

Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999).

      The district court concluded that “plaintiff has not established a prima facie

case for his claim of racial discrimination because he has made no showing that

any of the defendants’ actions occurred under circumstances giving rise to an

inference of discrimination.” Although we believe this language conflates the

distinct steps of the McDonnell Douglas inquiry, the district court correctly

concluded that Mr. Rolland has failed, as a matter of law, to carry his burden.

      Mr. Rolland has satisfied three of the four prongs of a prima facie

discriminatory discharge case 3: he is African-American, Primesource terminated

him, and there is no evidence his position was eliminated. See Kendrick v.

Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000). However, he

      3
        To establish a prima facie case of discriminatory discharge, Mr. Rolland
must show: (1) that he is a member of a protected class; (2) that he was qualified
for his position; (3) that he was discharged from his position; and (4) that the
position was not eliminated after his termination. Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000).

                                         -6-
falters in his attempt to show he was qualified – in fact, evidence introduced by

Mr. Rolland himself noted that he had slept on the job while working for one of

Primesource’s clients.

      Even if we were to conclude that Mr. Rolland had borne his initial burden,

Primesource has more than satisfied its end of the McDonnell Douglas inquiry,

and Mr. Rolland has offered nothing that suggests that Primesource’s proffered

justification for terminating him was pretextual. See Perry, 199 F.3d at 1135 (“If

the defendant is able to articulate a valid reason, the plaintiff can avoid summary

judgment only if [he] is able to show that a genuine dispute of material fact exists

as to whether the defendant’s articulated reason was pretextual.” (quotation marks

omitted)). Primesource explained that it fired Mr. Rolland because he had

performed poorly in the positions to which Primesource assigned him prior to

January 6, 2006. Primesource supported this position with ample evidence from

Mr. Rolland’s personnel file. Additionally, Primesource noted that Mr. Rolland,

like all of its employees, was an “at-will” employee.

      Under the McDonnell Douglas paradigm, Mr. Rolland “must demonstrate

that the defendant’s proffered race-neutral reasons were so incoherent, weak,

inconsistent, or contradictory that a rational factfinder could conclude the reasons

were unworthy of belief.” Young, 468 F.3d at 1250 (internal quotation marks and

brackets omitted). For his part, Mr. Rolland contends that evidence of pretext can

be found in Primesource’s failure to (1) inform him of his deficient performance

                                        -7-
prior to his termination, (2) allow him access to his personnel records, and (3)

avail him of Primesource’s problem resolution procedure. See Kendrick, 220

F.3d at 1230 (laying out three typical ways that plaintiffs may demonstrate

pretext). However, Mr. Rolland admitted that Primesource routinely terminated

other employees without informing them that they were performing poorly,

allowing them access to their personnel files or holding a hearing. Additionally,

the Primesource handbook does not provide for a pre-termination hearing or any

other mandatory pre-termination procedure.

      Thus, even though we must credit Mr. Rolland’s testimony that he received

neither notice, nor access to his file, nor a hearing, he still was not “treated

differently from other similarly-situated employees.” Kendrick, 220 F.3d at 1230.

Mr. Rolland’s bald assertions to the contrary do not amount to proof that

Primesource’s “tendered reason” for terminating him “was not the genuine

motivating reason, but rather was a . . . sham reason.” Reynolds v. Sch. Dist. No.

1, 69 F.3d 1523, 1535 (10th Cir. 1995). 4 In addition, aside from his complaint’s

conclusory allegations, Mr. Rolland has introduced no evidence to suggest that


      4
       It is also worth noting that Mr. Rolland testified that the Primesource
employee who replaced Mr. Rolland at the job site he reported to on the day he
was terminated was also African-American. (See D. Ct. Docket No. 32, Exh. 5 at
115-16 (Rolland Deposition) (“So Diane and I were working and Eric [Jones]
comes in. When he comes in, he comes in with a younger black guy . . . . He
[Jones] said, Well, I have this guy here [to work at Woodstream that day].”) This
information deflates Mr. Rolland’s contention that Primesource’s decision to
terminate him was discriminatory.

                                          -8-
Primesource’s decision to terminate him stemmed from unlawful discriminatory

animus.

III.   Conclusion

       Although the summary judgment standard requires us to view the evidence

in the light most favorable to the non-moving party (Mr. Rolland), there must be

some evidence to view favorably. Where, as here, the non-moving party has

adduced nothing, nothing in the way of a triable issue can come to light. As such,

we AFFIRM. 5

                                             Entered for the Court


                                             David M. Ebel
                                             Circuit Judge




       5
       In light of our holding, Mr. Rolland’s pending motions before this court
are hereby DENIED.

                                       -9-
