Merswin vs. The Williams Co, No. 06-5230 (10th Cir. 2007)
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 9, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court R EN E SAWA N IE M ER SWIN , Plaintiff-Appellant, v. THE W ILLIA M S COM PANIES, IN C., No. 06-5230 (D.C. No. 05-CV-0436-CVE-FHM ) (N.D. Okla.) Defendant-Appellee. OR D ER AND JUDGM ENT * Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges. Rene M erswin, appearing pro se, appeals the district court s dismissal of his complaint alleging that his former employer, The W illiams Companies, Inc. (TW C), discriminated against him on the basis of race and national origin, unlaw fully retaliated against him, and created a hostile w ork environment in violation of 42 U.S.C. §§ 2000e through 2000e-17 and 42 U.S.C. § 1981. The * 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. district court granted summary judgment in favor of TW C, and exercising jurisdiction under 28 U.S.C. § 1291, we affirm. M r. M erswin identifies himself as a black, African-American male from the country of Suriname. Aplt. Br. at 4. He was employed by TWC as a systems analyst from June 1999 until July 2004 when TW C outsourced a portion of its information technology (IT) department to IBM . Following M r. M ersw in s termination, he was hired temporarily by IBM until M arch of 2005. M r. M erswin s chief complaint is that he suffered adverse employment action when TW C failed to promote him to a higher grade level. He attempts to bolster his complaint by alleging that he was forced to cross-train on an application known as PV CA Tracker, while a Caucasian employee was permitted to cross-train on his preferred application called Remedy Support. M r. M ersw in contends that cross-training on PV CA Tracker disadvantaged him during the transition to IBM and that when he complained of these purportedly discriminatory acts, TW C retaliated by limiting his promotional opportunities and creating a generally hostile w ork environment. M r. M erswin filed a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and then this action in the district court. The district court, however, in a well-reasoned order, determined that TW C was entitled to summary judgment because M r. M ersw in failed to make a prima facie showing of discrimination on either his failure-to-promote claim or his retaliation -2- claim. The court also ruled that M r. M ersw in s evidence of a hostile work environment was insufficient to establish a valid claim, and hence summary judgment w as proper on that count as well. W e review a grant of summary judgment de novo, applying the same legal standards as the district court pursuant to Fed. R. Civ. P. 56 (c). Dunbar v. Jackson Hole M tn. Resort Corp., 392 F.3d 1145, 1147 (10th Cir. 2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. In determining whether there is a genuine issue as to any material fact, we examine the evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. at 1148. On appeal, M r. M ersw in argues that summary judgment was inappropriate because he did, in fact, suffer adverse employment action and was subjected to a hostile w ork environment. But our review of the district court s order leads us to conclude otherwise. The district court first ruled that his failure-to-promote claim was unavailing because he did not suffer adverse employment action. The court explained that there was no evidence that the position to which M r. M ersw in referred was open, that TW C sought to promote any employee to that position, or that he had even applied for the job. Further, the court discussed his allegations of being forced to cross-train on an application he viewed as unfavorable, but recognized that there was absolutely no evidence that he would have been -3- retained either by TW C or IBM had he been permitted to work on Remedy Support, especially since he w as already trained on that application. The court added that even if TW C s mandatory cross-training w ere sufficient to establish adverse action, TW C had articulated a legitimate, non-discriminatory reason for its policy: By cross-training, [TW C] ensured that multiple employees were proficient with respect to each application such that work would not be compromised in case of an employee s absence. Aplt. A pp., Tab 67 at 14. Consequently, the court ruled that summary judgment was proper on M r. M erswin s failure-to-promote claim. Next, the court explained that M r. M erswin s retaliation claim likew ise failed because although he had engaged in protected activity by filing an EEOC complaint, he did not demonstrate that he suffered adverse employment action as a result. The court noted that M r. M ersw in relied on the same evidence to support his retaliation claim and reiterated that TWC s act of assigning him to the PVCA Tracker application and another employee to Remedy did not constitute adverse action sufficient to sustain a claim of retaliation. Lastly, the court examined M r. M ersw in s evidence of a hostile work environment, including instances in which he was offered a completely full bottle of water, taught Oklahoma slang, and given M cDonald s toys for his children. Id. at 4. The court also considered an incident in which his supervisor refused to have fingerprints taken from a box that had been placed under his chair which -4- contained the personal effects of a deceased co-worker. And the court accounted for an e-mail that had been circulated to M r. M erswin and his co-workers relating a story about a woman s ill-founded fear of M ichael Jordan and Eddie M urphy. The court addressed all this evidence, but concluded that it was insufficient to establish a claim for a racially hostile work environment. The court reasoned that the first anecdotes did not relate to race in any way, while the e-mail, albeit light-hearted, highlights the problems associated with racial stereotypes. Id. at 18. The court acknowledged that the e-mail could have made M r. M ersw in feel uncomfortable, but ruled that his subjective belief was not enough to establish a hostile w ork environment. W e agree with the district court s thoughtful analysis. It was detailed, accurate, and complete, leaving nothing for us to improve upon. Therefore, having carefully reviewed the parties briefs, the record on appeal, and the pertinent legal authority, we AFFIRM the district court s judgment for substantially the same reasons articulated in its order dated December 4, 2006. Entered for the Court M ichael R. M urphy Circuit Judge -5-
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