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

                           FOR THE TENTH CIRCUIT                      September 5, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
SHERMAN M. HUNT,

             Plaintiff-Appellant,

v.                                                         No. 13-3100
                                                 (D.C. No. 2:11-CV-02020-DJW)
RIVERSIDE TRANSPORTATION,                                   (D. Kan.)
INC.,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


      Sherman M. Hunt, proceeding pro se, appeals from the magistrate judge’s

order granting summary judgment in part and dismissing in part his employment

discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
§§ 2000e-5(g), and retaliation under 42 U.S.C. § 1981, against his former employer

Riverside Transportation, Inc. (Riverside). Exercising our jurisdiction under

28 U.S.C. §§ 636(c)(3) and 1291, we affirm.

      Mr. Hunt worked for Riverside performing custodial duties and running

business errands. In December 2010, he submitted a charge of discrimination to the

Equal Employment Opportunity Commission (EEOC) alleging discrimination based

on his race, “Black-African American,” in relation to an alleged comment made by

Riverside management that they would “put [a] mop handle up [Mr. Hunt’s] butt and

make a fudge sickle out of [him],” Aplee. App. at 9. He also claimed that Riverside

forced him to drive a company vehicle instead of his own, and suspended him

without pay because of his race. Mr. Hunt then filed the instant action pro se in

January 2011, claiming Title VII race discrimination. His complaint described the

“fudge sickle” comment, and allegations that a human resources supervisor “talk[ed]

down to [him]” and “fuel[ed] hostility,” id. at 12.

      Riverside reduced Mr. Hunt’s hours and ultimately terminated him in February

2011 for insubordination. Mr. Hunt immediately filed a second charge with the

EEOC alleging the termination was in retaliation for the filing of the first charge. He

requested and was appointed counsel by a magistrate judge1 in May 2011. In an

amended complaint, filed in June 2012 with the aid of his counsel, he asserted claims
1
      The parties consented to proceedings, including the entry of final judgment,
conducted by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). We will refer to
the magistrate judge hereinafter as the “district court.”


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for race discrimination and hostile work environment based on race in violation of

Title VII, and retaliation under § 1981.

      Riverside moved for summary judgment under Fed. R. Civ. P. 56 arguing that

Mr. Hunt could not establish his claims, or alternatively, that he failed to exhaust his

administrative remedies on his claim for hostile work environment. Mr. Hunt failed

to timely respond to Riverside’s motion for summary judgment, and instead filed a

pro se motion to reappoint counsel. The district court construed the motion as a

request to replace Mr. Hunt’s court-appointed counsel. It withdrew Mr. Hunt’s

appointed counsel on the basis of health reasons, but denied Mr. Hunt’s request for

new counsel. It permitted him to file a pro se response to Riverside’s motion for

summary judgment, which he did.

      The district court concluded it lacked subject matter jurisdiction over

Mr. Hunt’s hostile work environment claim as a result of his failure to exhaust

administrative remedies, and it dismissed that claim. Analyzing Mr. Hunt’s race

discrimination claim under the traditional burden-shifting analysis in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), the district court

considered whether Mr. Hunt established a prima facie case. See Carney v. City &

Cty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (stating elements of prima facie

case of racial discrimination). It determined Mr. Hunt was a member of a protected

class, and that while being required to drive a company vehicle did not qualify as an

adverse employment action, Mr. Hunt’s three-day suspension did qualify. Although


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it did not explicitly consider the third element of Mr. Hunt’s prima facie case, it

appears the district court assumed that Mr. Hunt satisfied this initial requirement of

McDonnell Douglas, see Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.

1997), as the district court nevertheless concluded that Riverside proffered a

legitimate, non-discriminatory reason for its employment action: that Mr. Hunt was

suspended because Riverside received a motorist’s complaint that Mr. Hunt drove the

company vehicle aggressively. Because Mr. Hunt did not offer any evidence

showing that Riverside’s proffered reason for the suspension was pretextual, the

district court granted summary judgment to Riverside on this claim.

      Regarding the retaliation claim under § 1981, considering the claim under the

McDonnell Douglas burden-shifting analysis, the district court found Mr. Hunt

established a prima facie case of retaliation. See Twigg v. Hawker Beechcraft Corp.,

659 F.3d 987, 998 (10th Cir. 2011) (stating elements of retaliation claim).

Specifically, it found that 1) Mr. Hunt engaged in protected opposition to

discrimination by filing his EEOC charge and the instant action; 2) a reasonable

employee would consider Mr. Hunt’s reduction of work duties and termination of

employment materially adverse; and 3) there was a causal connection between the

protected activity and materially adverse employment actions based on temporal

proximity. Riverside claimed its employment actions were legitimate and

nondiscriminatory. It proffered evidence that Mr. Hunt’s hours were reduced

because he could no longer drive for the company due to the aggressive driving


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complaint. It further proffered evidence that despite a disciplinary warning in

January 2011, Mr. Hunt continued to engage in multiple acts of aggression and

insubordination, including threatening co-workers and disrupting the workplace,

which resulted in his termination. The district court agreed and found that Mr. Hunt

failed to present any evidence that Riverside’s actions were pretextual. Accordingly,

the district court granted summary judgment to Riverside on this claim as well.

      Mr. Hunt now appeals. Because he is proceeding pro se, we construe his

filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza

v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). We will not, however, act as his

advocate in constructing his arguments and searching the record. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Mr. Hunt’s brief

contains little to no argument, nor does it contain any citations to the record or cite

legal authority. As best we can discern, however, on appeal he appears to argue the

district court erred in dismissing his hostile work environment claim for failure to

exhaust administrative remedies, erred in granting summary judgment on his race

discrimination claim, and erred in failing to appoint him new counsel.

      We review de novo a decision dismissing a cause of action for lack of subject

matter jurisdiction. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239,

1242 (10th Cir. 2011). “Exhaustion of administrative remedies is a jurisdictional

prerequisite to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.

1996) (internal quotation marks omitted). Mr. Hunt bears the burden to establish the


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court’s subject-matter jurisdiction. See Southway v. Cent. Bank of Nigeria, 328 F.3d

1267, 1274 (10th Cir. 2003). The district court determined that Mr. Hunt’s EEOC

charge did not allege facts indicating that the workplace at Riverside is “permeated

with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of [his] employment and create an abusive working

environment,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)

(internal quotation marks omitted). We agree. Mr. Hunt did not specify that he was

complaining of a hostile work environment nor did the narrative portion of his charge

adequately describe a hostile work environment. See Annett v. Univ. of Kan.,

371 F.3d 1233, 1238 (10th Cir. 2004). We agree with the district court that Mr.

Hunt’s hostile work environment claim could not reasonably be expected to follow

the allegations contained in his charge. See Jones v. United Parcel Serv., Inc.,

502 F.3d 1176, 1187 (10th Cir. 2007). Accordingly, dismissal of this claim for

failure to exhaust administrative remedies was appropriate.

      Regarding the race discrimination claim, Mr. Hunt argues only that he was

forced to drive the company vehicle and disputes that he ran a motorist off the road.

Reviewing the grant of summary judgment de novo as we must, see Crowe v. ADT

Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir. 2011), we perceive no error. We

agree with the district court that being required to drive a company vehicle does not

qualify as an adverse employment action and, further, that Mr. Hunt failed to produce

evidence demonstrating that Riverside’s three-day suspension was pretextual.


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      We also reject Mr. Hunt’s claim that the district court erred in failing to

appoint him new counsel. In denying Mr. Hunt’s motion to reappoint counsel, the

district court observed that its use of appointment power must be prudent and

thoughtful. Given the scarcity of willing attorneys to appoint in civil cases and the

number of requests for counsel, the district court reasoned it could not justify

appointing Mr. Hunt another attorney. And it found Mr. Hunt had shown an ability

to represent himself. We perceive no abuse of discretion. See Castner v. Colo.

Springs Cablevision, 979 F.2d 1417, 1422-23 (10th Cir. 1992) (stating that

appointment of counsel to be reviewed for abuse of discretion).

      We have reviewed the briefs, the record, and the applicable law. The district

court accurately analyzed the issues and we agree with its analysis. We therefore

affirm the judgment of the district court for substantially the same reasons explained

in the district court’s memorandum and order dated April 11, 2013.


                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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