                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-1252
                                     ___________

                                   DUANE MILLER,
                                             Appellant

                                           v.

                      KEYSTONE BLIND ASSOCIATION/TPM
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                        (D.C. Civil Action No. 2:11-cv-00887)
                     District Judge: Honorable Robert C. Mitchell
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 26, 2013

               Before: SCIRICA, JORDAN and COWEN, Circuit Judges

                             (Opinion filed: June 28, 2013)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Duane Miller, proceeding pro se, appeals from an order of the United States

District Court for the Western District of Pennsylvania granting Appellee’s motion for
summary judgment. For the reasons set forth below, we will affirm the District Court’s

order.

                                              I.

         Because we write primarily for the parties, we need only recite the facts necessary

for our discussion. Miller brought this action against Keystone Blind Association/TPM

(“KBA”), alleging racial discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § § 2000e-2000e-17 (“Title VII”). In January 2005, Miller started

working as an Attendant for KBA at the Bridgeville Rest Areas on Interstate 79.1 Miller

alleged that in October 2009, KBA discriminated against him when it promoted a white

employee, with less seniority, into the position of Lead Attendant. Miller alleged that

when the white employee left the position, KBA did not notify him even though it was

aware of his interest in the position.

         On March 12, 2010, Miller was promoted from Attendant to Lead Attendant at the

Bridgeville Rest Areas on Interstate 79. Gary Holder became his supervisor and Holder

reported to Operations Manager, Evelyn Kurdupski. During Miller’s employment as

Lead Attendant, his supervisors received several complaints regarding his performance

and attitude. Employees complained that Miller sat on picnic benches instead of

working, and that he failed to properly submit paperwork. In August 2010, while


1
  When Miller started working at KBA, he received an Employee Manual, which
included sexual harassment and safety policies. The manual stated that violation of the
policies would result in disciplinary action, including possible termination.
                                               2
Kurdupski was covering for Holder while he was on vacation, she personally witnessed

Miller violate the lunch time rules and saw him sitting on benches, while directing others

to perform work. Miller received disciplinary notices for his behavior. That same

month, Kurdupski received two separate complaints from female employees of sexual

harassment by Miller. Sharell Brown, a recently hired employee, reported that Miller

made inappropriate and sexually charged comments regarding her undergarments and

sexual relations. Brown did not feel comfortable working with Miller and refused to

work with him. Carolyn Isenberg, a KBA employee since 2007, also refused to work

with Miller due to his harassing behavior. She claimed that Miller told her explicit

details of his self-described “sexcapades,” and asked her personal questions about her

undergarments. The female employees provided written statements describing Miller’s

harassment and participated in a conference call with the Vice President of Human

Resources, during which they discussed their complaints. Kurdupski moved Brown and

Isenberg to different rest areas as a result of the incidents.

       When Holder returned from vacation, Krudupski spoke with him about Miller’s

disciplinary notices and allegations of sexual harassment. Holder recommended that

Miller be demoted to the position of Attendant and Krudupski agreed. The Vice

President of Human Resources reviewed Miller’s file and on August 23, 2010, he

demoted Miller from Lead Attendant to Attendant. The Human Resources Director

wrote to Miller, notifying him of his demotion and attached a letter entitled,

                                               3
“Investigation: Incident/Concern Request for Review.” Miller was told that if he

disagreed with the demotion, he should complete the Request for Review form, but

Miller never completed any paperwork.

       On August 26, 2010, Miller filed an EEOC charge, claiming that KBA

discriminated against him by demoting him from Lead Attendant to Attendant in

violation of Title VII. The EEOC investigation did not find any statutory violations. In

July 2011, Miller filed a complaint, which he amended in August 2011. KBA filed a

motion for summary judgment, which the District Court granted on January 8, 2013.2

Miller then timely filed this appeal.3

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s order granting summary judgment. See Giles v. Kearney, 571

F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate only when 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.” Fed. R. Civ. P. 56(a). “The moving party has the burden

of demonstrating that there is no genuine issue as to any material fact, and summary


2
  Miller filed his own motion for summary judgment on September 13, 2012. The
District Court dismissed it as untimely, but agreed to consider it in conjunction with
Miller’s response to KBA’s motion for summary judgment.
3
  In his appellate brief, Miller raises for the first time the contention that the District
Court should have applied the Americans with Disabilities Act. Therefore, we will not
consider this argument.

                                              4
judgment is to be entered if the evidence is such that a reasonable fact finder could find

only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.

2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may

summarily affirm if the appeal does not present a substantial question, and may do so on

any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)

(per curiam).

                                            III.

       In his complaint, Miller alleges discrimination based upon race. Upon review of

the record, we conclude that the District Court correctly granted KBA’s motion for

summary judgment.

       Miller’s claim of race discrimination arising out of his demotion fails under the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this framework, he has the initial burden of establishing a prima facie case

of discrimination by proving that (1) he is a member of a protected class; (2) he suffered

some form of adverse employment action; and (3) this action occurred under

circumstances giving rise to an inference of unlawful discrimination that might occur

when nonmembers of the protected class are treated differently. See Goosby v. Johnson

& Johnson Med., 228 F.3d 313, 318 (3d Cir. 2000); Jones v. Sch. Dist. of Phila., 198

F.3d 403, 410 (3d Cir. 1999). Once a plaintiff establishes a prima facie case, the

employer must provide a legitimate, non-discriminatory reason for the adverse

                                             5
employment action. See Goosby, 228 F.3d at 319. If the employer meets this burden, the

burden again shifts to the plaintiff to demonstrate that the employer’s reason is pretextual.

See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005); Jones, 198 F.3d at 412.



       We accept for the sake of argument that Miller established a prima facie case of

discrimination. Shifting the burden to KBA, it has pointed to legitimate, non-

discriminatory reasons for Miller’s demotion, including his failure to properly submit

paperwork, his sitting on picnic tables rather than working, and the incidents in which he

sexually harassed female employees. In order for Miller’s discrimination claim to

succeed, he must show that KBA’s proffered legitimate reasons to demote him were a

pretext for unlawful racial discrimination. Miller argued that KBA did not follow the

proper procedures in demoting him. However, the record shows that KBA acted in

accordance with its employment practices as set forth in the handbook Miller received

when he started working there. Miller also alleged that for example he was treated

differently from other similarly situated white employees, but there is evidence that KBA

demoted a white Lead Attendant to Attendant for his failure to complete proper

paperwork. Thus, Miller has failed to produce any evidence that would lead to the

inference that KBA’s proffered reasons for demoting Miller were mere pretext. See

Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). Accordingly, we conclude that the




                                             6
District Court properly granted KBA’s motion for summary judgment with respect to

Miller’s race discrimination claim arising from his demotion.

       Regarding Miller’s claim of racial discrimination based on KBA’s failure to

promote him in October 2009, we agree with the District Court that this claim fails

because Miller did not exhaust his administrative remedies. A plaintiff initiating an

employment discrimination suit under Title VII must first exhaust his remedies by

complying with the procedural requirements set forth in 42 U.S.C. § 2000e-5. These

requirements include filing a charge with the EEOC within 180 days of the alleged

unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1); Burgh v. Borough

Council of Borough of Montrose, 251 F.3d 465, 472 (3d Cir. 2001). Here, Miller failed

to exhaust his claim of racial discrimination arising out of KBA’s failure to promote him

in October 2009. Because this claim was not brought to the attention of the EEOC, and

accordingly did not fall within the scope of its investigation, the District Court properly

dismissed Miller’s failure to promote claim as unexhausted. See, e.g., Webb v. City of

Phila., 562 F.3d 256, 262-63 (3d Cir. 2009).

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                               7
