                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            APR 29 1999
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                   Clerk

    CHARLES R. POWELL,

                Plaintiff-Appellant,

    v.                                                    No. 98-2178
                                                    (D.C. No. CIV-97-721-M)
    UNITED STATES POSTAL                                   (D. N.M.)
    SERVICE, and WILLIAM J.
    HENDERSON, Postmaster General,

                Defendants-Appellees.


                             ORDER AND JUDGMENT             *




Before BRORBY , EBEL , and LUCERO , Circuit Judges.



         Plaintiff Charles R. Powell appeals from an order of the district court

granting defendant s’ motion for summary judgment in this action brought

pursuant to Title VII, 42 U.S.C.   §§ 2000e-2000e-17.   1
                                                            We reverse and remand.


*
      This order and judgment is not binding precedent, except under the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.
1
       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.
      Mr. Powell originally filed charges of race and age discrimination and

retaliation with the EEOC in 1993. An    administrative law judge determined that

defendants had not discriminated against Mr. Powell, but recommended a finding

of retaliation. In 1995, Mr. Powell commenced an action in federal district court

to enforce the EEOC determination. The parties entered into a settlement

agreement in 1996 which was signed by Mr. Powell and his attorney. Mr. Powell

then withdrew his suit. The agreement provided that Mr. Powell would be

promoted retroactively to 1993, would receive (1) back pay, including shift

differential and any other pay increases, due between 1993 and 1996; (2) interest

on those unpaid wages; (3) calculated overtime; (4) credit for used sick leave; and

(5) $15,000.00 in compensatory damages, as well as    attorney’s fees . The

agreement also stated that   defendants would not retaliate against Mr. Powell in

any manner for filing his EEOC action, the 1995 civil action seeking enforcement

of the agency’s determination, or for signing the agreement.

      After the agreement was signed, Mr. Powell contested his scheduled days

off, an issue which had not been made a part of the settlement agreement.

Defendants had originally scheduled him to have consecutive days off during the

week. Mr. Powell preferred to be off on weekends. Defendants then scheduled

Mr. Powell with Saturday and Monday off, as had been stated in a letter sent by

defendants during the settlement negotiations.   See Rec., tab 19, Ex. 6 & Ex. B


                                           2
at 2. Over a year later, Mr. Powell argued that    defendants had made a mistake in

that letter and had actually accepted his proposal of Friday and Saturday as days

off. See id. tab. 20, enc. K.

       In 1998, Mr. Powell commenced this action       in district court. Mr. Powell

claimed defendants were discriminating against him on the basis of race and were

retaliating against him as evidenced by his assignment of days off. The district

court held that Mr. Powell had failed to make a prima facie case of discrimination

or retaliation as he had instigated all changes in his schedule. Further,

consecutive days off were not a part of the negotiated terms of the settlement

agreement.

       We review the district court’s ruling on a motion for summary judgment de

novo, examining “the record to determine whether any genuine issue of material

fact was in dispute” and if “the substantive law was applied correctly.”    McKnight

v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998) (quotation

omitted).

       The plaintiff in a Title VII case “bears the initial burden of setting forth a

prima facie case of discrimination.”    Sanchez v. Denver Pub. Sch. , 164 F.3d 527,

531 (10th Cir. 19 98). Tailoring the    McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973) scheme to fit the facts of this disparate treatment case,

Mr. Powell can establish a prima facie case of discrimination by showing that as a


                                             3
member of a protected class, he suffered an adverse employment action and

similarly situated nonminority employees were not subjected to the same action he

was. Cf. EEOC v. Flasher Co. , 986 F.2d 1312, 1316 (10th Cir. 1992).

       To establish a prima facie case of retaliation, Mr. Powell must show: 1) he

had opposed Title VII discrimination; 2) he suffered an adverse employment

action; and 3) a causal connection exists between his protected Title VII activity

and the adverse employment action.       See Gunnell v. Utah Valley State College   ,

152 F.3d 1253, 1262-63 (10th Cir. 19 98). “The burden of persuading the

factfinder that the defendant intentionally discriminated remains at all times with

the plaintiff . . . and the plaintiff must prove that the defendant’s action was

intentionally retaliatory.”   Id. at 1263 .

       Mr. Powell was originally assigned consecutive days off during the week.

He objected to having his days off scheduled mid-week and requested weekends

off instead. Only after he specifically requested weekends off was he given

nonconsecutive days off as originally proposed by      defendants . Mr. Powell had

not objected when these days were first proposed. Under these facts, Mr. Powell

did not made a prima facie case of discrimination or retaliation concerning the

manner in which the settlement agreement was executed.

       However, Mr. Powell has submitted a letter to this court that appears to be

defendants’ response to his renewed request for consecutive weekend days off.


                                              4
Defendants denied the request stating that “until your pending lawsuit is settled

this change [is] not possible.” Letter of November 6, 1998.     2
                                                                    This response,

considered along with the other evidence of record, raises concerns that

defendants may now be retaliating against Mr. Powell. We note that          defendants

have previously been found to have retaliated against Mr. Powell and were

unwilling to settle that claim.   See Rec. tab. 20, enc. E. (correspondence from

magistrate judge noting that defendants were “unwilling to enter into a reasonable

settlement” after the agency had found retaliation and that     defendant s’ position

was “very difficult to understand in light of the rather clear liability in this

cause”) . Mr. Powell has also stated that he is the only Black American working

in the Albuquerque Human Resources department, is the only person who has

filed an EEOC complaint, and is the only person working in his position who has

nonconsecutive days off.

       Retaliatory motive can be shown by “protected conduct closely followed by

adverse action.”    Burrus v. United Tel. Co. of Kan., Inc.   , 683 F.2d 339, 343 (10th

Cir. 1982). It appears that Mr. Powell may be able to make the required showing

here. Therefore, in the interests of justice, we must remand this case to permit the

district court to determine whether Mr. Powell has sufficient evidence to present a



2
      We note that this letter was sent after the district court entered judgment in
the pending action and while Mr. Powell’s appeal was pending before this court.

                                             5
prima facie case that defendants are retaliating against him for bringing this

current action. Should the district court determine that Mr. Powell can present

such a prima facie case,   defendants must then articulate a legitimate business

reason to show a nondiscriminatory motive for refusing to reconsider Mr.

Powell’s schedule while this suit is pending.

       The district court’s judgment is REVERSED and this case is REMANDED

for further proceedings in accordance with this order and judgment. Mr. Powell’s

motion to supplement the record is GRANTED insofar as we recognize that Mr.

Powell has additional evidence that should be considered by the district court.

See Aero-Medical, Inc. v. United States, 23 F.3d 328, 329 n.2 (10th Cir. 1994).

The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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