                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 3 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BENNY MOORE,

                Plaintiff-Appellant,

    v.                                                  No. 02-3367
                                                 (D.C. No. 01-CV-1053-MLB)
    UNIFIED SCHOOL DISTRICT 443,                           (D. Kan.)
    Dodge City Public Schools,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and McCONNELL, 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      This order and judgment is not binding precedent, except under the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 Benny Moore, appearing pro se, 1 appeals the district court’s grant

of summary judgment in favor of defendant Unified School District 443 (school

district), on his employment discrimination claim. Because plaintiff did not raise

a genuine issue of fact as to whether the school district’s proffered reasons for its

decision were actually pretexts for race discrimination, we affirm.

      Plaintiff, an African-American, was employed as a basketball coach by

the school district, on year-to-year contracts, from 1991 until the end of the

1999-2000 school year. During this time, he was not a certified teacher. Plaintiff

coached the sophomore boys’ basketball team for one year, the freshman boys’

basketball team for four years, and the girls’ high school varsity team for his last

four years.

      The school district’s high school athletic programs were governed by rules

promulgated by the Kansas State High School Activities Association (KSHSAA).

One of these rules stated that certified teachers were eligible to coach activities

under the jurisdiction of the KSHSAA. See R. I, doc. 40, KSHSAA Handbook,

Rule 10, Art. 1. The rule authorized schools to obtain permission from the

KSHSAA Executive Board to hire a non-certified coach, upon the school’s

verification that it needed to do so and that the position was required to maintain

a program or to ensure safety. Id., Art. 3. Plaintiff’s contract was renewed yearly


1
      Plaintiff was represented by counsel in the district court.

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based on this provision. In March 2000, plaintiff was informed that his contract

would not be renewed.

      Plaintiff filed discrimination charges with state and federal agencies, and

received a right-to-sue letter. In February 2001, he brought suit against the

school district. After numerous discovery disputes and additional time given to

plaintiff after he missed the summary judgment deadline, the district court granted

summary judgment in favor of the school district. The district court held that

plaintiff’s pretext evidence did not raise a genuine issue of fact regarding the

school district’s motivation for deciding not to renew his contract.

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

applying the same legal standards as the district court. Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). Summary judgment

should be granted “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show 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). In deciding whether the

moving party is entitled to summary judgment, we must view the facts in the light

most favorable to the nonmoving party, drawing all reasonable inferences in its

favor. Kendrick, 220 F.3d at 1225.




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      The record evidence shows that two people were involved in the decision

not to renew plaintiff’s contract, and that each had slightly different motivations

for replacing plaintiff with a certified coach. The high school principal testified

that he understood the regulations to require certified coaches whenever possible;

that he strongly believed that a high school head coach should be a certified

teacher working at the school; and that based on the number of teacher openings

for the following year he was sure he could find an applicant qualified to coach

the girls’ varsity basketball team. See R. I, doc. 40, Jay Smith Affidavit. The

athletic director agreed with this motivation, but also testified that plaintiff’s

failure to work at the school caused communication and control problems with the

team, and that when she spoke with him about some of the problems he informed

her that she should speak to the team because they would not listen to him.

Id., doc. 44, Tami Preston Deposition at 24-25.

      Plaintiff argues that he raised a triable issue regarding the school district’s

true motivation by showing that the school district renewed the contracts of white

uncertified coaches but did not renew his contract. While pretext may be shown

by demonstrating that plaintiff, as an African-American, was treated differently

than similarly-situated white coaches, plaintiff’s evidence did not rise to this

level. See Watts v. City of Norman, 270 F.3d 1288, 1293-94 (10th Cir. 2001)




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(affirming summary judgment when plaintiff failed to present evidence that he

was similarly situated to other employees), cert. denied, 535 U.S. 1055 (2002).

      “The burden is on the plaintiff to demonstrate he is similarly situated to the

employees to whom he is comparing himself.” Kelley v. Goodyear Tire & Rubber

Co., 220 F.3d 1174, 1178 (10th Cir. 2000). Here, plaintiff failed to identify

similarly situated coaches of other races who were treated differently from him.

His summary judgment evidence showed that there were “probably” two other

non-certified coaches at the high school when his contract was not renewed:

a cross-country running coach and a girls’ tennis coach. R. I, doc. 44, Tami

Preston Deposition at 23. His evidence did not show, however, the races of these

coaches; whether they were head coaches; whether they coached varsity teams;

whether they coached sports that many certified teachers were qualified to coach;

or whether they were having similar trouble controlling their team members.

Absent this type of evidence, we cannot assume that the school district’s real

reason for not renewing plaintiff’s contract was his race. Because plaintiff did

not meet his evidentiary burden, the district court properly granted summary

judgment in favor of the school district.




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

is AFFIRMED. The mandate shall issue forthwith.


                                                  Entered for the Court



                                                  Terrence L. O’Brien
                                                  Circuit Judge




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