                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 12 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    HARLEY R. LYONS, also known as
    H. Ray Lyons,

                Plaintiff - Appellant,                     No. 04-1275
                                                     (D.C. No. 03-D-91(CBS))
    v.                                                      (D. Colo.)

    RED ROOF INNS, INC.,

                Defendant - Appellee.




                             ORDER AND JUDGMENT           *




Before LUCERO , McKAY , and ANDERSON , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff-appellant Harley R. Lyons, proceeding pro se, appeals the district

court’s grant of summary judgment in favor of his former employer, defendant-

appellee Red Roof Inns, Inc. (RRI), on his claims that RRI engaged in reverse

gender and racial discrimination in violation of Title VII of the Civil Rights Act

of 1964. See 42 U.S.C. § 2000e-2(a)(1). We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

      Lyons is a white male. Lyons was employed by RRI from July 23, 2000 to

January 8, 2001, working as a guest services representative and a night auditor at

RRI’s hotel #239 in Colorado Springs, Colorado. RRI terminated Lyons’

employment on January 8, 2001 because he had allegedly violated RRI’s payment

and check acceptance policies on several occasions.     See R., Doc. 24, Ex. C.

Lyons claims that RRI terminated him “with intent to discriminate because of his

race/color (Caucasian/White), and his sex (male).”     Id. , Doc. 15 at 1.

      “In McDonnell Douglas Corp. v. Green       , 411 U.S. 792 . . . (1973), the

Supreme Court established a three-part paradigm for evaluating Title VII

disparate treatment claims.”   Notari v. Denver Water Dep’t , 971 F.2d 585, 588

(10th Cir. 1992).

      McDonnell Douglas first requires the aggrieved employee to
      establish a prima facie case of prohibited employment action. The
      burden of establishing a prima facie case by a preponderance of the
      evidence is not onerous. Furthermore, this burden is one of
      production, not persuasion; it can involve no credibility assessment.
      If the employee makes a prima facie showing, the burden shifts to the

                                           -2-
       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 , __ F.3d __, 2005 WL 984363, at *5 (10th Cir. April 28, 2005)

(quotations and citations omitted).

       As determined by the magistrate judge, “Lyons’ allegation that he was

subjected to disparate treatment because he is a white male is subject to a reverse

discrimination analysis.” R., Doc. 41 at 3. As a result, in evaluating Lyons’

prima facie showing under the      McDonnell Douglas paradigm, the magistrate

judge was required to apply the standards that this court adopted in        Notari . Under

Notari , for a reverse discrimination claimant to establish a prima facie case of

discrimination, the claimant must “establish background circumstances that

support an inference that the defendant is one of those unusual employers who

discriminates against the majority.”      Notari, 971 F.2d at 589. “Alternatively, a

reverse discrimination plaintiff may satisfy the first prong of        McDonnell Douglas

by presenting ‘indirect evidence sufficient to support a reasonable probability,

that but for the plaintiff’s status the challenged employment decision would have

favored the plaintiff.’”   Stover v. Martinez , 382 F.3d 1064, 1076 (10th Cir. 2004)

(quoting Notari , 971 F.2d at 590).




                                             -3-
       The magistrate judge concluded that “Lyons fail[ed] to make . . . a prima

facie case because there is insufficient evidence that: (1) RRI is one of those

unusual employers who discriminates against white males; or (2) if Lyons were

not a white male, RRI would not have terminated him from his job.”      1
                                                                            R., Doc. 41

at 5. The magistrate judge therefore recommended to the district judge that RRI’s

motion for summary judgment be granted. The district judge adopted the

magistrate judge’s recommendation and entered judgment in favor of RRI.

       “We review the grant of summary judgment de novo applying the same

standard as the district court embodied in Rule 56(c).”     Adler v. Wal-Mart Stores,

Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Under Rule 56(c), summary judgment is

proper if “there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In

applying this standard, we view the factual record and draw all reasonable

inferences therefrom most favorably to the nonmovant.”        Adler , 144 F.3d at 670.

We also construe Lyons’ pro se pleadings liberally.       See Diaz v. Paul J. Kennedy

Law Firm , 289 F.3d 671, 674 (10th Cir. 2002). Nonetheless, Lyons must set forth


1
      The magistrate judge also concluded that, even if Lyons had made out a
prima facie case of reverse discrimination, RRI was still entitled to summary
judgment because Lyons “failed to demonstrate that RRI’s articulated reasons for
terminating him are pretextual or unworthy of belief.” R., Doc. 41 at 12. We do
not need to address this aspect of the magistrate judge’s analysis, however, as we
agree with the magistrate judge that Lyons failed to make out a prima facie case
of reverse discrimination.

                                            -4-
sufficient facts to support his claims,     id. , and “[c]onclusory allegations that are

unsubstantiated do not create an issue of fact and are insufficient to oppose

summary judgment,” Harvey Barnett, Inc. v. Shidler         , 338 F.3d 1125, 1136 (10th

Cir. 2003) (quotation omitted).

       Having conducted the required de novo review, we conclude that Lyons

failed to put forth sufficient evidence to establish a prima facie case of reverse

discrimination. First, for substantially the same reasons set forth in the magistrate

judge’s recommendation, we conclude that Lyons failed to put forth sufficient

evidence to establish that RRI is one of those unusual employers who

discriminates against white males.        See R., Doc. 41 at 5-6.

       Second, we also agree with the magistrate judge that Lyons failed to put

forth sufficient evidence to establish that, but for his status as a white male, RRI

would not have terminated his employment. Specifically, we agree with the

following analysis of the magistrate judge:

             [T]he evidence indicates that Lyons was terminated . . . for
       repeated failure to follow RRI payment policy procedures and check
       acceptance policies . . . .

              . . . Lyons has not presented evidence that similarly situated
       minority or female employees were treated any differently than
       him. . . .

              There is no evidence that other RRI employees were similarly
       situated to Lyons regarding their job performance. Lyons contends
       that he was disciplined more harshly than a white female GSR,
       Ashlee Stroup, for the same conduct. However, unlike Ms. Stroup,

                                              -5-
       Lyons repeatedly accepted personal checks from guests who did not
       have RediCards, causing financial loss to RRI. Ms. Stroup accepted
       one government voucher on or about December 11, 2000. Ms. Stroup
       was verbally counseled about accepting the government voucher.

              Lyons complains that Ms. Stroup was not disciplined for
       accepting a “Social Services check” on or about January 4, 2001.
       Acceptance of this government check did not violate RRI’s policies.
       There is no evidence that Ms. Stroup committed any more than a
       single violation of RRI’s payment policies. Lyons has not presented
       any evidence that Ms. Stroup accepted the same kind of checks that
       he accepted. Lyons has not presented any evidence that Ms. Stroup
       or any other employee accepted personal checks from guests  who did
       not have RediCards . The evidence shows that Lyons accepted at
       least three personal checks from guests without noting a RediCard
       number.

Id. at 7-9 (quotation, citations, and footnote omitted).   2
                                                               We also reject Lyons’

claim that RRI discriminated against him by failing to adequately train him, as we

agree with the magistrate judge that “Lyons has not presented any evidence that

similarly situated females or minority employees were provided more training

than he was provided.”     Id. at 9.

       In his opening brief, Lyons claims that he submitted documentation to the

district court showing that “nine other [RRI] employees on thirty separate

occasions in the year 2000 performed their jobs in the same manner as Lyons did

of accepting a personal check from a Non-RediCard member as form of payment



2
      “A RediCard is a preferred customer program which entitles a guest [at
RRI] to special privileges, including the ability to write a personal check.” R.,
Doc. 24, Ex. E at 2, ¶ 10.

                                             -6-
for a hotel room.” Aplt. Opening Br. at 2, 5. To support this allegation, Lyons

refers to Exhibit 9 to the supplemental response brief that he filed in opposition to

RRI’s motion for summary judgment.        Id. at 5; see also R., Doc. 33, Ex. 9.

Exhibit 9 contains documents showing RRI customer payment information for the

year 2000 for hotel #239, and it was produced to Lyons by RRI during discovery

after the magistrate judge ordered RRI “to produce documents for the year 2000

which are records showing those occasions where non-Redi-card members paid by

personal check without prior approval or without submitting their check in

advance.” R., Doc. 30 at 2.

       Lyons is correct that Exhibit 9 appears to show that other RRI employees at

hotel #239 accepted personal checks from customers in 2000. But the documents

in Exhibit 9 do not conclusively show that the customers who paid with personal

checks were not RediCard members. In fact, Lyons himself pointed out this

deficiency to the magistrate judge at a discovery/status conference that was held

shortly before the magistrate judge entered his recommendation on RRI’s

summary judgment motion.       See R., Doc. 40 at 1-7. The magistrate judge

declined to grant Lyons any relief with respect to the documents contained in

Exhibit 9, however, id. , Doc. 32 at 1-2, and Lyons never asked the district judge

to reconsider the magistrate judge’s pretrial rulings concerning Exhibit 9.        See 28

U.S.C. § 636(b)(1)(A) (providing that a judge of the district court may reconsider


                                            -7-
a magistrate judge’s ruling on a nondispositive pretrial matter “where it has been

shown that the magistrate judge’s order is clearly erroneous or contrary to law”);

Fed. R. Civ. P. 72(a) (same). Likewise, Lyons failed to assert any objection

concerning Exhibit 9 when he objected to the magistrate judge’s recommendation

on RRI’s motion for summary judgment.     3
                                              R., Doc. 42. Consequently, Lyons has

waived any objection that he has to the documents contained in Exhibit 9, and the

documents cannot be used to support his prima facie case since they are

inconclusive on the RediCard issue.   4




3
       Instead, on the same day that he filed his supplemental response brief in
opposition to RRI’s summary judgment motion, Lyons filed a separate pleading in
the district court entitled “Plaintiff’s Reply to Defendant’s Third Amended
Responses to Plaintiff’s Rule 34 F.R.C.P. Request for Production of Documents.”
R., Doc. 34. In this reply, Lyons stated that the documents in Exhibit 9 “do not
indicate non Redi-Card members or the type of check the guest paid with.”     Id. at
1. Lyons therefore requested that RRI “indicate in writing which guests in the
documentation provided are non Redi-Card members paying by personal check.”
Id. RRI never responded to the latter request, however, and Lyons’ request was
not a proper discovery request under the Federal Rules of Civil Procedure. In
addition, Lyons made his request after the district court’s discovery cutoff had
expired, and he never sought to extend the discovery cutoff for purposes of
supplementing the documents in Exhibit 9.
4
      We also note that the affidavit of Lyons’ wife, who was employed at the
same RRI hotel where Lyons worked, is also deficient for purposes of providing
evidence concerning the RediCard issue. In her affidavit, Ms. Lyons stated that
“[d]uring the year 2000, while working for Red Roof Inns, I accepted many
checks as form of payment on a room. I took in personal checks and business
checks.” R., Doc. 29, Ex. 2 at 1, ¶ 6. Ms. Lyons did not state that the checks
were from non-RediCard members, however.

                                          -8-
       Finally, we conclude that the magistrate judge correctly determined that

Lyons failed to put forth sufficient evidence to show that he was the victim of

reverse racial discrimination because RRI hired Paul Taylor, an African-American

male, to replace him. As summarized by the magistrate judge,

       The evidence in the record allows at most the inference that
       Mr. Taylor was hired because he needed a job and based on his
       acquaintance with [Lyons’ supervisor], not because of intentional
       discrimination against Lyons because he is a white male. Viewed in
       the light most favorable to Lyons, the evidence shows no more than
       Lyons’ personal belief that he was subjected to illegal discrimination
       because Taylor is black and he is white.

R., Doc. 41 at 10 (citation omitted). We further conclude that the magistrate

judge correctly determined that Lyons failed to assert a state-law claim for

wrongful termination in the proceedings before the district court.    Id. at 12 n.2.

We thus reject Lyons’ claim that the district court erred because his “claim for

wrongful termination was not addressed in the final judgment.” Aplt. Opening

Br. at 4.

       The judgment of the district court is AFFIRMED. Lyons’ motion to file

corrected opening and reply briefs is GRANTED.


                                                        Entered for the Court


                                                        Stephen H. Anderson
                                                        Circuit Judge



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