                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 20 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    VICTOR A. STEPHENS,

                Plaintiff-Appellant,

    v.                                                  No. 99-3055
                                                 (D.C. No. 97-CV-2527-GLR)
    CITY OF TOPEKA, KANSAS;                               (D. Kan.)
    TOPEKA HOUSING AUTHORITY,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , BARRETT , and McKAY , 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      This order and judgment is not binding precedent, except under the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 Victor A. Stephens appeals pro se from the district court’s grant of

summary judgment in favor of defendant on his Title VII, 42 U.S.C. §§ 2000e           to

2000e-17, and 42 U.S.C. § 1981 claims.       1
                                                 Plaintiff alleges in his complaint that he

was discriminated against on the basis of his race and national origin when he was

terminated from his position as Deputy Director of the Topeka Housing Authority

with defendant City of Topeka, Kansas. In addition, plaintiff alleges that

defendant unlawfully retaliated against him for filing a discrimination lawsuit

against a former employer, the City of Columbia, Missouri. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

       We review the district court’s grant of summary judgment de novo and

apply the principles set forth in Fed. R. Civ. P. 56(c).      See Kaul v. Stephan ,

83 F.3d 1208, 1212 (10th Cir. 1996). In particular, Rule 56(c) instructs that

summary judgment is appropriate when the record demonstrates that “there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “‘We view the evidence and

draw any inferences in a light most favorable to the party opposing summary

judgment, but that party must identify sufficient evidence which would require




1
      Pursuant to 28 U.S.C. § 636(c), the parties waived their right to proceed
before a district court judge and consented to have the case referred to a
magistrate judge for final disposition.

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submission of the case to a jury.’”      Aramburu v. Boeing Co. , 112 F.3d 1398, 1402

(10th Cir. 1997) (quoting       Williams v. Rice , 983 F.2d 177, 179 (10th Cir. 1993)).

       Plaintiff argues on appeal that the district court erred in granting summary

judgment because plaintiff showed that defendant’s proffered reasons for

terminating him, i.e., substandard work performance and causing poor work

morale, were pretextual.    2
                                In addition, plaintiff challenges the district court’s

finding that plaintiff was not terminated in retaliation for filing a discrimination

lawsuit against his former employer. Plaintiff’s appeal is based on his assertion

that the district court erred in deciding facts. Plaintiff does not challenge the

district court’s application of the law.

       In his opening brief to this court, plaintiff relies heavily on some of

the exhibits attached to a document captioned “Response to Summary Judgment

and Petition to Appeal.”        See R., Vol. II, Doc. 61. Significantly, this document

was filed with the district court after it issued its decision granting summary

judgment. Plaintiff’s challenge of the district court’s factual findings on



2
       Plaintiff’s opening brief does not discern between his race-based and
national origin-based discrimination and retaliation claims. Defendant contends
that plaintiff has waived his race-based claims because plaintiff states in his brief
to this court that “‘he was terminated based upon his national origin, Jamaican,’
and ‘he was discriminated against for bringing a lawsuit against a former
employer’” and does not reference his race-based claims. Appellee’s Br. at 1-2
(quoting Appellant’s Opening Br. at 1). Because of our disposition of this appeal,
we need not determine whether plaintiff has waived his race-based claims.

                                              -3-
appeal turns on these exhibits, which fall generally into two categories:

(1) letters/witness statements attesting to plaintiff’s good character and good work

performance; and (2) work-related documents which plaintiff alleges demonstrate

he was fulfilling his duties as Deputy Director of the Topeka Housing Authority.

Our review of the record shows that the exhibits attached to plaintiff’s “Response

to Summary Judgment and Petition to Appeal” were not presented by either party

to the district court. Notably, with one exception, the letters/witness statements

referenced in plaintiff’s opening brief and attached to the “Response to Summary

Judgment and Petition to Appeal” are dated after the district court’s January 15,

1999 memorandum and order granting summary judgment. Because the evidence

plaintiff relies on in making his arguments on appeal was not before the district

court, we do not consider it on appeal.   See John Hancock Mut. Life Ins. Co. v.

Weisman , 27 F.3d 500, 506 (10th Cir. 1994) (holding that reviewing court cannot

consider evidence before it on appeal of summary judgment motion that was not

before the district court).

       We have reviewed the record before the district court and have concluded

that the district court’s disposition was correct. The district court’s memorandum

and order is thorough and contains a detailed analysis of plaintiff’s claims as well

as the evidence in the record. We need not add anything to the district court’s

decision and, consequently, we affirm the grant of summary judgment for


                                          -4-
substantially the reasons stated in the district court’s January 15, 1999

memorandum and order.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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