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

                             FOR THE TENTH CIRCUIT                         November 7, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JACK ALLEN MITCHELL, II,

      Plaintiff - Appellant,

v.                                                          No. 17-3090
                                                   (D.C. No. 2:16-CV-02145-CM)
KANSAS CITY KANSAS SCHOOL                                     (D. Kan.)
DISTRICT,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY, and MATHESON, Circuit Judges.
                  _________________________________

      Mr. Jack Allen Mitchell, II, proceeding pro se,1 appeals the district court’s

grant of summary judgment to his former employer, the Kansas City Kansas School

District, on his claims alleging race discrimination and retaliation under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17. We have jurisdiction

under 28 U.S.C. § 1291 and affirm the district court’s judgment.

      *
        After examining the briefs and appellate record, this panel has 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
       We afford Mr. Mitchell’s pro se pleadings a liberal construction. See Van
Deelen v. Johnson, 497 F.3d 1151,1153 n.1 (10th Cir. 2007).
                                           I

      Mr. Mitchell, who is African-American, worked as a bus driver for the Kansas

City Kansas School District. During his tenure, he was the subject of complaints and

reprimands for a variety of infractions, including falsely reporting that he had

checked his bus for a missing student and, upon discovering that the student was on

his bus, failing to immediately report that fact to his dispatcher. During another

incident, which occurred on October 30, 2015, Mr. Mitchell’s girlfriend was involved

in an auto accident with a bus driver on school-district property. Mr. Mitchell was

not present, but he arrived on scene and allegedly argued and interfered with another

employee who was investigating the accident. Eventually, Mr. Mitchell’s supervisor

called the police, who removed Mr. Mitchell from the property.

      On November 5, 2015, Mr. Mitchell and his sister met with officials from the

school district to discuss the October 30 incident. The parties dispute what transpired

during the meeting, but on December 9, Mr. Mitchell filed an EEOC charge, citing

the October 30 incident and alleging race discrimination and retaliation. The school

district then notified Mr. Mitchell on December 21 that he was recommended for

termination due to nine prior instances of inappropriate conduct or policy violations,

including exhibiting aggressive behavior toward other employees. On January 26,

2016, the school board unanimously approved Mr. Mitchell’s termination, and on

February 5, 2016, he filed a second EEOC charge alleging retaliation. Later, the

board upheld Mr. Mitchell’s termination, and upon receiving a right-to-sue letter

from the EEOC, he initiated this action, claiming race discrimination and retaliation.

                                           2
       The district court granted summary judgment to the school district, initially

noting that Mr. Mitchell did not cite any specific evidence demonstrating a genuine

factual dispute; instead, he generally admitted or denied the school district’s factual

averments and cited entire exhibits to support his assertions. The court also observed

that Mr. Mitchell’s summary judgment response contained no argument section. On

the merits, the district court concluded that Mr. Mitchell failed to make a prima facie

case of either discrimination or retaliation and he made no attempt to show pretext.

                                             II

       A. Summary Judgment Standard

       We review the district court’s summary judgment ruling de novo, applying the

same legal standard as the district court and viewing the evidence in the light most

favorable to the non-moving party. Ward v. Jewell, 772 F.3d 1199, 1202 (10th Cir.

2014). “Summary judgment is appropriate ‘if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir.

2014) (quoting Fed. R. Civ. P. 56(a)) (internal quotation marks omitted). “A party

asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing

to particular parts of materials in the record . . . .” Fed. R. Civ. P. 56(c)(1)(A). This

means Mr. Mitchell was obliged “to go beyond the pleadings and set forth specific

facts that would be admissible in evidence . . . from which a rational trier of fact

could find” in his favor. Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.

2000) (internal quotation marks omitted).

                                             3
       At the outset, Mr. Mitchell contends that the district court failed to consider

three types of evidence he submitted: (1) affidavits, (2) a Kansas Department of

Labor determination indicating he was eligible for unemployment benefits because

there was no evidence of misconduct relating to his employment status, and

(3) “[a]udio/vid[e]o [e]vidence.” Aplt. Br. at 4. Mr. Mitchell does not elaborate on

this argument or explain how this evidence is relevant, but he may be arguing that the

district court failed to consider these materials because it declined to search the

record for specific evidence to support his claims.

       This argument is meritless because the district court correctly recognized that

“it is the responding party’s burden to ensure that the factual dispute is portrayed

with particularity, without depending on the trial court to conduct its own search of

the record,” Cross v. Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (ellipsis and

internal quotation marks omitted). By citing entire exhibits without framing the

specific material factual disputes, Mr. Mitchell failed to comply with Rule 56(c)’s

directive to set forth the specific facts that could lead a jury to find in his favor.

There was no error because “[t]he district court was not obligated to comb the record

in order to make [Mr.] Mitchell’s argument for him.” Mitchell, 218 F.3d at 1199.

       B. Race Discrimination

       Turning to Mr. Mitchell’s race discrimination claim, he seems to suggest the

district court applied the wrong standard in concluding that he failed to establish a

prima facie case of discrimination. Under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII plaintiff must

                                             4
make a prima facie case of discrimination by showing he “is a member of a protected

class, []he suffered an adverse employment action, and the challenged action

occurred under circumstances giving rise to an inference of discrimination,” Bennett

v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). “One of the

ways [the] third prong may be met . . . is by attempting to show that the employer

treated similarly situated employees differently.” Jones v. Denver Post Corp.,

203 F.3d 748, 753 (10th Cir. 2000). If the plaintiff makes this showing, the burden

shifts to the employer to proffer a legitimate, non-discriminatory reason for the

adverse action, upon which the burden shifts back to the plaintiff to show the

employer’s rationale is pretext for discrimination. Id. at 752-53. Pretext may be

shown by “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Bennett, 792 F.3d at 1267 (internal quotation marks omitted).

      To the extent Mr. Mitchell contends the district court applied the wrong legal

standard, we disagree. The court correctly described the elements of a prima facie

case; it simply articulated the third element as requiring evidence that an employer

treated similarly situated employees differently, which, as indicated above, is one

way to show adverse action under circumstances creating an inference of

discrimination, see Jones, 203 F.3d at 753. “[T]he elements of a prima facie case are

neither rigid nor mechanistic.” Bennett, 792 F.3d at 1266.

                                           5
      More to the point, the district court correctly concluded that Mr. Mitchell

failed to establish a prima facie case. The court observed there was no dispute that

Mr. Mitchell was a member of a protected class and suffered adverse employment

action. But the court recognized there was no evidence that he was treated

differently than similarly situated employees. Mr. Mitchell repeatedly testified at his

deposition that other than his own independent belief, he had no evidence that he had

been treated differently than similarly situated employees. See R. at 163. This failed

to satisfy his burden at the prima facie stage.

      Further, the school district proffered legitimate, non-discriminatory reasons for

firing Mr. Mitchell, and he failed to offer any argument that those reasons were

pretext for discrimination. This defeats his claim because Mr. Mitchell has

effectively waived the issue of pretext. Indeed, if a theory is not raised in the district

court, we usually hold it forfeited and refuse to consider it unless a party seeks

plain-error review on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128

(10th Cir. 2011). “[T]he failure to argue for plain error and its application on appeal

. . . marks the end of the road” for a new argument for reversal not presented to the

district court. Id. at 1131; see McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir.

2010) (holding that party’s “failure to explain in her opening appellate brief why [her

forfeited arguments in the district court] survive the plain error standard waives the

arguments in this court” (italics omitted)). Mr. Mitchell does not address plain error

or even mention pretext in his appellate brief. Consequently, for all of the foregoing

reasons, we affirm the district court’s grant of summary judgment on this claim.

                                            6
      C. Retaliation

      Mr. Mitchell’s retaliation claim suffers from similar defects. Under the

McDonnell Douglas framework, he was required to show “(1) he engaged in

protected opposition to discrimination; (2) he suffered an adverse action that a

reasonable employee would have found material; and (3) there is a causal nexus

between his opposition and the employer’s adverse action.” Zisumbo v. Ogden Reg’l

Med. Ctr., 801 F.3d 1185, 1199 (10th Cir. 2015). The protected activity must be “a

but-for cause of the alleged adverse action.” Davis, 750 F.3d at 1170 (internal

quotation marks omitted). If he made this prima facie showing, the burden shifts to

the employer to show a legitimate reason for adverse action, upon which the burden

shifts back to Mr. Mitchell to show pretext. See Stover v. Martinez, 382 F.3d 1064,

1070-71 (10th Cir. 2004).

      To the extent Mr. Mitchell claims the district court applied the wrong standard

in articulating the prima facie case, there was no error. To the extent Mr. Mitchell

contends he made a prima facie case, we disagree. As the district court observed,

Mr. Mitchell offered no argument relating to his prima facie case. And even if we

were to overlook this shortcoming, Mr. Mitchell cannot establish the causation

element of his prima facie case. Although he does not explicitly say so, he seems to

suggest on appeal that he established a causal connection because he was terminated

shortly after he filed his first EEOC charge. See Ward, 772 F.3d at 1203 (“If the

protected conduct is closely followed by the adverse action, courts have often

inferred a causal connection.”). But he acknowledges that he was told at the

                                           7
November 5 meeting that he had been placed on unauthorized leave without pay

following the October 30, 2015 incident in which the police were called to remove

him from school property. See Aplt. Br. at 1 (stating that at the November 5 meeting

“[I] asked more than twice what my employment status [was], and was told only that

I was on unauthorized leave without pay”). Thus, while Mr. Mitchell disputes that

the November 5 meeting was for disciplinary purposes, he does not dispute that the

school district took adverse action before he filed his first EEOC charge on

December 9, 2015. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1234-35 (10th Cir. 2000) (finding no retaliatory animus where the employer’s

decision to take adverse action pre-dated the employee’s grievance).

      Moreover, the temporal proximity between Mr. Mitchell’s EEOC charge and

his termination a month and a half later is immaterial under these circumstances

because, as indicated above, the school district had already initiated disciplinary

proceedings as a result of the October 30, 2015 incident involving the police.

See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (per curiam) (holding

that employers “proceeding along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality”); cf. Morgan v. Hilti,

Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (recognizing in an ADA case that

temporal proximity failed to establish pretext because the employer issued warnings

before the employee filed her EEOC charge and her subsequent termination “simply

completed the disciplinary process already set in motion”). Indeed, Mr. Mitchell

concedes that by the November 5 meeting the school district had already placed him

                                           8
on unauthorized leave without pay; he merely asserts that he did not know he was

being disciplined or that his job was at risk until he filed a complaint with the EEOC,

see Aplt. Br. at 2. But his “state of mind is irrelevant to th[e] inquiry.” Vigil v. Colo.

Dep’t of Higher Educ., No. 98-1174, 1999 WL 407479, at *5 (10th Cir. June 21,

1999) (unpublished).2

      In any event, even if Mr. Mitchell could make a prima facie case, he made no

attempt in the district court to show that the school district’s proffered reasons for

terminating him were pretextual. Nor does he urge us to review the issue of pretext

for plain error on appeal. Under these circumstances, we decline to consider the

issue. See Richison, 634 F.3d at 1131. Accordingly, we affirm the entry of summary

judgment on this claim as well.

                                           III

      The judgment of the district court is affirmed.

                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




      2
         Although non-precedential, we may consider unpublished decisions for the
their persuasive value. See Fed. R. App. P. 32.1; 10 Cir. R. 32.1(A).
                                            9
