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

                             FOR THE TENTH CIRCUIT                           April 1, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DANIEL WAYNE CLAY,

      Plaintiff - Appellant,

v.                                                         No. 14-3249
                                                  (D.C. No. 2:13-CV-02240-SAC)
UNITED PARCEL SERVICE, INC.,                                 (D. Kan.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________

      Daniel Wayne Clay appeals the district court’s order granting summary

judgment to his former employer United Postal Service, Inc. (“UPS”) and denying his

motion for summary judgment on his claims of hostile environment and

discriminatory termination based on his race, African American, under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981.

Proceeding pro se, Clay also challenges the district court’s order refusing to appoint



      *
        After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
him counsel and the magistrate court’s ruling allowing UPS an extension of time to

answer his complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      We review summary judgment rulings de novo, applying the same legal

standard as the district court. Morris v. City of Colo. Springs, 666 F.3d 654, 660

(10th Cir. 2012). Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as matter of

law.” Fed. R. Civ. P. 56(a). In making this determination, we view the facts and

evidence in the light most favorable to the nonmoving party. Morris, 666 F.3d at 660.

Because Clay is a pro se litigant, we construe his filings liberally, but we do not

construct arguments or otherwise advocate on his behalf. See Yang v. Archuleta, 525

F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th

Cir. 1991).

      Construing Clay’s brief liberally, we discern two direct challenges to the

district court’s summary judgment ruling. First, Clay challenges the district court’s

decision to treat UPS’ summary judgment motion as uncontested based on Clay’s

untimely response. Second, he complains the district court failed to adequately

consider two of his factual allegations: (1) that a fellow employee’s car bore a

confederate flag license plate, and (2) that a member of UPS’ management, in

responding to Clay’s comment about this license plate, told Clay he could “have a

Black Panther sticker.” Clay also generally argues the district court improperly

applied the summary judgment standard.



                                               2
      Initially, the district court did not err in deciding UPS’ motion as uncontested.

Clay filed an untimely response to UPS’ motion, and he does not argue otherwise.

See Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002) (holding untimely

response can result in district court deciding motion as uncontested). Nor did the

district court neglect to consider or improperly weigh the factual allegations

referenced in Clay’s appeal brief. The district court considered both allegations as

well as Clay’s other allegations of racially motivated behavior in concluding the

complained-of conduct was not so “severe or pervasive” as to “alter the conditions

of” Clay’s employment. See Morris, 666 F.3d at 666-67 (discussing hostile work

environment standard). Likewise, the district court properly weighed these facts in

determining they did not create an inference of discrimination and in rejecting Clay’s

unlawful termination claims. See Daniels v. United Parcel Serv., Inc., 701 F.3d 620,

625 (10th Cir. 2012) (noting that to present a prima facie case of discrimination,

plaintiff must prove adverse employment action occurred “under circumstances

giving rise to an inference of discrimination”).

      After thoroughly reviewing the record, ruling, and briefs, we conclude the

district court properly applied the summary judgment standards. And for the reasons

stated by the district court, we affirm the court’s grant of summary judgment to UPS

and its denial of Clay’s motion for summary judgment.

      Clay also contends the district court erred in denying his motion for appointed

counsel because he asserted circumstances justifying such appointment here—

namely, that he raised Title VII claims, that he experienced difficulty meeting

                                               3
deadlines, and that he was undergoing psychiatric therapy. We review denials of

appointed counsel in civil cases for abuse of discretion. See Rucks v. Boergermann,

57 F.3d 978, 979 (10th Cir. 1995).

      We have held that in considering whether to appoint counsel in a civil case

district courts should consider the claim’s merits, the nature of the factual issues

asserted, the complexity of legal issues, and the litigant’s ability to represent himself.

See Rucks, 57 F.3d at 979. Here, the district court adequately considered these factors

and appropriately denied Clay’s request. Specifically, the court concluded that the

facts and legal issues were not overly complex and that Clay showed an ability to

adequately communicate the facts giving rise to his claims and to otherwise represent

himself.

      Similarly, we find no abuse of discretion in the magistrate court’s decision to

grant UPS a second extension of time to respond to Clay’s complaint. See Buchanan

v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per curiam) (reviewing ruling on

requested extension of time for abuse of discretion). UPS requested only a 10-day

extension, and it supported the request with adequate reasons.

      Finding no error in the challenged rulings, we affirm.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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