                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            September 26, 2005
                                     TENTH CIRCUIT
                                                                               Clerk of Court

 BARNARD ANDERSON,

                Plaintiff - Appellant,                        No. 05-3118
           v.                                                 (D. Kansas)
 SEDGWICK COUNTY,                                    (D.C. No. 03-CV-1230-MLB)

                Defendant - Appellee.


                               ORDER AND JUDGMENT*


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


       Plaintiff Barnard Anderson appeals the grant of summary judgment in favor of

Defendant Sedgwick County on his claims of racial discrimination in violation of

42 U.S.C. §§ 1981 and 1983. We have jurisdiction under 28 U.S.C. § 1291 and affirm.**




       *
        This order and judgment is not binding precedent, except under the doctrines of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.

       **
         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.
I.     BACKGROUND

       The Sedgwick County Department of Corrections (DOC) hired Mr. Anderson, who

is black, in June 2001. During Mr. Anderson’s interview for the position, he disclosed

that his daughter was also employed by the DOC in a different facility. Gary Sutton, head

of the program for which Mr. Anderson interviewed, checked with both his supervisor,

Robert Brassfield, and Mr. Brassfield’s supervisor, Larry Ternes, about hiring

Mr. Anderson despite his daughter’s employment and received approval from both. The

DOC director, Mark Masterson, was not involved in the hiring process. But when

Mr. Masterson learned, less than a day after Mr. Anderson’s start date, that Mr. Anderson

had been hired in violation of the DOC antinepotism policy, Masterson made the decision

to terminate him while he was still on probationary status. The DOC hired as

Mr. Anderson’s replacement a resident alien from West Africa, who is also black.

       Mr. Anderson filed a complaint with the Kansas Human Rights Commission and

the Equal Employment Opportunity Commission, alleging that Defendant discriminated

against him on the basis of race, sex, disability, and age. After exhausting his

administrative remedies, Mr. Anderson, represented by counsel, filed a complaint in the

United States District Court for the District of Kansas, alleging racial discrimination in

violation of 42 U.S.C. §§ 1981, 1983.

       In response Defendant filed a motion for summary judgment arguing that (1)

section 1981 was inapplicable to Mr. Anderson’s case, (2) Mr. Anderson had failed to


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establish a prima facie case of racial discrimination, (3) Mr. Anderson could not establish

that Defendant’s reason for terminating his employment—violation of its antinepotism

policy—was pretextual, and (4) Mr. Anderson failed to file his claim within the two-year

limitations period.

       The district court granted summary judgment, holding that Mr. Anderson had

established a prima facie case of discrimination but that he could not establish that

Defendant’s reason for firing him was pretextual because he could not show that the

antinepotism policy was applied inconsistently. It further held that it need not decide

whether Mr. Anderson could bring a claim under § 1981, because even if he could, it

would fail. Mr. Anderson filed a pro se motion to reconsider, which was also denied.

       Mr. Anderson appeals, contending that (1) he is entitled to a decision on his

motion for reconsideration; (2) “a District Court Judge conducted proceedings in place of

a Chief Magistrate Judge and . . . it was [not] approved by the ‘magistrate,’” Aplt. Br. at

7; and (3) the district court’s grant of summary judgment to Defendant was improper

because he did not actually violate the Defendant’s antinepotism policy. We review each

contention in turn.

II.    DISCUSSION

       Before addressing the grant of summary judgment, we easily dispose of

Mr. Anderson’s other arguments. Mr. Anderson’s contention that his motion for




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reconsideration was never ruled upon is without merit. The district court issued a Minute

Order denying the motion on February 18, 2005.

          Mr. Anderson’s complaint that a district judge, as opposed to a magistrate judge,

conducted his proceedings likewise fails. Mr. Anderson relies on Kansas District Court

Rule 72.1.2, which provides:
      b) Civil cases shall be assigned by the clerk of the court to a magistrate
      judge or judge for the conduct of a Fed. R. Civ. P. 16(b) scheduling
      conference, the issuance of a scheduling order, and such other pretrial
      conferences as are necessary and appropriate, and for the hearing and
      determination of all pretrial, procedural and discovery motions. Where the
      parties consent to the trial and disposition of a case by a magistrate judge
      under D. Kan. Rule 72.1.3, such case shall, with the approval of the judge
      to whom it was assigned at the time of filing, be re-assigned to a magistrate
      judge for the conduct of all further proceedings and the entry of judgment.

          Mr. Anderson construes this rule to mean that once his case was assigned to a

magistrate judge, all dispositions required the approval of a magistrate judge. But the

same rule provides:

          c) Reservation of Proceedings by Judges. Nothing in these rules shall
          preclude a judge from reserving any proceedings for conduct by a judge,
          rather than by a magistrate judge.

D. Kan. R. 72.1.2. No violation of the local rules occurred in this case.

          A.    Summary Judgment

          Mr. Anderson argues that the grant of summary judgment was improper because

Defendant’s antinepotism policy does not apply to him, and thus could not serve as a

legitimate nondiscriminatory reason for his termination. Defendant’s antinepotism policy

states:

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       D. Employment of Immediate Family
            1.    Sedgwick County will prohibit the hiring of spouses and/or
                  immediate family members within the same department, but
                  not within the County structure.
                  a.     Immediate family and family of the employee’s spouse
                         shall be considered husband, wife, son, son-in-law,
                         daughter . . .

Policy/Procedure Manual of Sedgwick County ¶ II.D (hereinafter “Manual”), R. at Doc.

# 44, p. 10002. It is undisputed that Mr. Anderson’s daughter was employed by the

Department of Corrections, albeit in a different program. Thus, the plain language of the

antinepotism policy prohibits Mr. Anderson’s employment within the same department as

his daughter.

       Mr. Masterson indicated in his deposition that some time prior to Mr. Anderson’s

hire and discharge, a human resources representative had informed him that the

underlying purpose of the antinepotism policy was to prohibit family members from

working in the same program or supervising one another. But he had decided to apply the

antinepotism policy as it was stated in the manual, to prohibit family members from

working together within his department. Mr. Anderson’s contention that Defendant’s

antinepotism policy did not apply to him is without merit.

       Although Mr. Anderson does not specifically attack the district court’s holding that

he failed to carry his burden of showing that the antinepotism policy was a pretext, we

construe his pro se brief to this court as a general attack on the grant of summary

judgment in favor of Defendant. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.


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1998). “We review grants of summary judgment de novo to determine whether any

genuine issue of material fact exists, viewing all evidence and any reasonable inferences

that might be drawn therefrom in the light most favorable to the non-moving party.”

Raiser v. Utah County, 409 F.3d 1243, 1246 (10th Cir. 2005) (internal quotation marks

omitted).

       The district court applied the McDonnell Douglas burden-shifting framework to

Mr. Anderson’s claims of racial discrimination. See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). The McDonnell Douglas test requires that Mr. Anderson

first establish a prima facie case of discrimination. The burden then shifts to Defendant

to proffer a legitimate nondiscriminatory reason for its actions; and if Defendant does so,

the burden shifts back to Mr. Anderson to show that Defendant’s proffered reasons were

pretextual. The district court ruled that Mr. Anderson had established a prima facie case

of racial discrimination, and that Defendant had offered a legitimate nondiscriminatory

reason for his discharge—that he was hired in violation of the DOC’s antinepotism

policy. The burden of persuasion then lay with Mr. Anderson to provide proof that

Defendant’s proffered reason was a pretext for its alleged racial discrimination.

       A plaintiff typically makes a showing of pretext in one of three ways: (1)
       with evidence that the defendant's stated reason for the adverse employment
       action was false, (2) with evidence that the defendant acted contrary to a
       written company policy prescribing the action to be taken by the defendant
       under the circumstances, or (3) with evidence that the defendant acted
       contrary to an unwritten policy or contrary to company practice when
       making the adverse employment decision affecting the plaintiff. A plaintiff
       who wishes to show that the company acted contrary to an unwritten policy

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       or to company practice often does so by providing evidence that he was
       treated differently from other similarly-situated employees who violated
       work rules of comparable seriousness.

Kendrick v. Penske Transp. Serv., Inc. 220 F.3d 1220, 1230 (10th Cir. 2000) (internal

citations omitted).

       Mr. Anderson attempted to establish that Defendant’s proffered reason for

terminating him was pretextual by evidence that he was treated differently from other

similarly situated employees who violated the antinepotism policy. Specifically, in his

memorandum in opposition to the motion for summary judgment, Mr. Anderson alleges

that “Caucasians such as the Suttons, Novaks, Strouds, Hieberts, and others were treated

differently and were hired and retained despite the Anti-Nepotism policy.” R. at Doc.

# 49, p. 24.

       The Suttons, Strouds, and Hieberts were all married couples. The Suttons were

married and hired by the DOC before the enactment of the antinepotism policy in 1981

and were grandfathered in. The Strouds were simultaneously employed as sheriff’s

deputies, but the sheriff’s department was governed by a less restrictive policy than the

county’s antinepotism policy. Patrick Heibert and his former wife were married after

their employment. The antinepotism policy permits employees to remain in the same

department after being married “so long as an employee does not supervise or receive

supervision from, have assignment with or work in close proximity to, a member of




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his/her immediate family.” Manual ¶ II.D.2. During their marriage the Hieberts did not

supervise one another and worked in different programs.

       As for Chris Novak and Stacy Anderson, sibling employees of the DOC,

Defendant concedes that they violated the antinepotism policy. But Mr. Masterson did

not learn of the hiring mistake until after the employees had completed probationary

status and were permanent employees—not probationary like Mr. Anderson.

       Defendant points out that on two other occasions it has learned of violations of its

antinepotism policy after the employees had gained permanent employee status. On both

occasions the employees were African-American, and it did not terminate these

employees either. Although Mr. Anderson has shown that other employees did not suffer

adverse consequences for violating the antinepotism policy, two of the three sets of

unpunished violators were African-Americans, hardly suggesting racial prejudice.

       Moreover, in each case the employees had achieved permanent-employee status

before the violation was discovered. Thus, Mr. Anderson was not similarly situated to the

other DOC employees who had violated the policy.

       Because Mr. Anderson did not sustain his burden to demonstrate pretext in

Defendant’s terminating him, the grant of summary judgment in favor of Defendant is

AFFIRMED.




                                            -8-
       Mr. Anderson’s motion to proceed in forma pauperis is granted. Mr. Anderson’s

other outstanding motions are denied.


                                        ENTERED FOR THE COURT

                                        Harris L Hartz
                                        Circuit Judge




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