Grubbs v. Salvation Army , 612 F. App'x 530 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 13, 2015
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Elisabeth A. Shumaker
Clerk of Court
ELVIS J. GRUBBS,
Plaintiff - Appellant,
v. No. 14-3273
(D.C. No. 5:13-CV-04017-DDC-TJJ)
THE SALVATION ARMY, (D. Kan.)
Defendant - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, LUCERO, and McHUGH, Circuit Judges.
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Elvis Grubbs, proceeding pro se,1 appeals from the district court’s grant of
summary judgment in favor of his former employer, the Salvation Army. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
We construe Grubbs’ pro se filings liberally. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
I
Grubbs, a Native American man in his mid-fifties, was employed by the
Salvation Army as a thrift store clerk from November 2010 to January 2012. His
duties as clerk included stocking, cleaning, and arranging merchandise, and other
duties as assigned. Shortly after he was hired, Grubbs was trained to sort “bric-a-
brac,” a task that involves placing products into grocery carts at the back of the store
and restocking items on store shelves. Initially, a white male employee who was
younger than Grubbs was primarily responsible for bric-a-brac. After that employee
was fired, one of Grubbs’ supervisors took over responsibility for bric-a-brac.
Grubbs himself increasingly assisted with the bric-a-brac after that supervisor
became pregnant. Eventually Grubbs spent approximately half his time at work
sorting merchandise and the other half stocking merchandise.
Uncontroverted evidence in the record shows that Grubbs was absent from
work or was admonished for substandard work performance on several occasions.
On June 27, 2011, Grubbs failed to report to work due to car problems and he was
issued a warning. He was issued a second warning on July 29, 2011, for failing to
carry out his work assignments in a timely manner. On November 16, 2011, a
manager noted that Grubbs was absent from work and failed to notify anybody at the
store that he would be absent. Grubbs also left work early several times in January
2012. On January 12, 2012, Grubbs contacted his employer to report that he would
arrive late to work because his transmission failed. A manager informed him that he
would need to substantiate his excuse by providing a receipt for transmission work.
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He never provided such a receipt. The next day, Grubbs failed to report to work. On
January 14, when Grubbs returned to work, he was issued a third disciplinary
warning for his absences and substandard performance. He was suspended, and later
terminated.
Grubbs then filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) alleging that he was terminated on the basis of his gender,
age, and ancestry. The EEOC was unable to conclude from its investigation that the
Salvation Army violated the law and it issued Grubbs a right to sue letter. Grubbs
subsequently filed suit in federal district court. The district court determined that
Grubbs had failed to establish a prima facie case of unlawful discrimination and had
not presented evidence of pretext. It accordingly granted summary judgment in favor
of the Salvation Army. Grubbs timely appealed.
II
We review the grant of summary judgment de novo, applying the same legal
standard used by the district court. Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir.
2001). Summary judgment is appropriate only “if 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). “In our review, we examine the evidence and
draw reasonable inferences therefrom in the light most favorable to the non-moving
party.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1129 (10th Cir. 2003).
Because Grubbs presents no direct evidence of illegal age, race, or gender
discrimination, we evaluate his claim under the familiar burden-shifting framework
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of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Garrett v. Hewlett-
Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). This approach involves three
steps: “(1) the plaintiff’s prima facie case of [unlawful] discrimination, (2) the
defendant’s legitimate business justification, and (3) the plaintiff’s rebuttal showing
of pretext and/or improper motivation.” Fallis v. Kerr-McGee Corp., 944 F.2d 743,
744 (10th Cir. 1991).
Even assuming that Grubbs established a prima facie case, we agree with the
district court that he has not shown the Salvation Army’s reasons for termination
were pretextual. A plaintiff may “establish pretext by showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Santana v. City & Cnty. of Denver, 488 F.3d
860, 864 (10th Cir. 2007) (quotation omitted).
The uncontroverted evidence shows that Grubbs was admonished for repeated
absences, tardiness, and failure to perform his work in a timely manner. Although
Grubbs provides various excuses and explanations for his absences and he denies that
his performance was deficient, he does not dispute that the absences occurred or that
he was admonished for his performance. At most, Grubbs asserts a general dispute
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concerning his job performance. It is well-settled that such a dispute, standing alone,
does not establish pretext. Fallis, 944 F.2d at 747.2
III
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
2
Construed liberally, Grubbs’ appellate filings assert that various documents
prepared by the Salvation Army violated his privacy rights; that the district court
abused its discretion by forbidding Grubbs from directly contacting the Salvation
Army or defense counsel after Grubbs allegedly engaged in harassing behavior; and
that the district court ignored his “motion for review” of that requirement. Because
Grubbs fails to offer any substantive argument to support these issues, we consider
them waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th
Cir. 2005).
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