Hoko v. Huish Detergents, Inc. ( 2011 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    December 27, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                  Clerk of Court
    SIONE HOKO,
    Plaintiff-Appellant,
    No. 11-4016
    v.                                          (D.C. No. 2:09-CV-00361-TS)
    (D. Utah)
    HUISH DETERGENTS, INC.,
    n/k/a Sun Products Corporation,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
    Judges.
    Sione Hoko appeals pro se the district court’s grant of summary judgment
    in favor of Huish Detergents, Inc. (Huish) on his Title VII and state-law claims.
    We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
    *
    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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    I. Background
    Mr. Hoko, who identifies himself as Asian/Pacific Islander, worked for
    Huish from September 16, 1989, until his employment was terminated on June 27,
    2005. His last position with Huish was as a Supervisor in the Raw Material
    Department. Huish’s Policy Book, which Mr. Hoko received a copy of in 2004,
    included an Internet Policy stating that employees given access to the internet
    were required to use it for business purposes only and that personal use of the
    internet was not allowed. Mr. Hoko also signed a Computer Security Policy in
    2004 acknowledging that Huish computer equipment was to be used only to
    conduct company business. The Computer Security Policy stated: “Employees
    found to be in violation of this policy are subject to disciplinary action, up to and
    including termination of employment.” R., Vol. 2 at 43.
    As of June 2005, Mr. Hoko had access to the internet from his Huish
    computer at a level consistent with his role as a Supervisor. Specifically, he had
    access to any website on the internet, with the exception of certain categories of
    sites that were deemed inappropriate. In his Supervisor position, Mr. Hoko was
    expected to spend only ten percent of his work time sitting. In May and June
    2005, Mr. Hoko’s supervisor, Shane McPhie, heard that he was spending a lot of
    time in the Supervisor’s office. Mr. McPhie asked the Information Technologies
    Department to monitor Mr. Hoko’s use of the internet for a period of time. An
    audit was approved by the Human Resources Department, and the audit report
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    showed that, from June 12 through June 22, 2005, Mr. Hoko repeatedly visited
    non-work-related internet sites for extended periods of time during his work day.
    A subsequent audit showed that Mr. Hoko was on the internet on
    non-work-related sites for several hours during a later shift. On June 27, 2005,
    Mr. McPhie and Debbie Mair, Huish’s Director of Human Resources, met with
    Mr. Hoko and terminated his employment. They explained that his termination
    was based on the excessive amount of time he had been spending on the internet.
    About two weeks later, Mr. Hoko returned an exit-interview form to Huish.
    On that form he complained that Mr. McPhie had yelled at him, had applied the
    company’s computer-use policy in a discriminatory manner, and had fired him in
    retaliation for complaining about discrimination. Huish investigated Mr. Hoko’s
    allegations, including interviewing two employees who Mr. Hoko said had
    witnessed Mr. McPhie yelling at him. Neither witness supported Mr. Hoko’s
    claims regarding yelling or discrimination by Mr. McPhie. One witness did state
    that he was forced to do Mr. Hoko’s job for him. The other witness estimated
    that Mr. Hoko spent 80% of his time on his computer. Mr. McPhie also denied
    Mr. Hoko’s allegations.
    Mr. Hoko filed a charge with the Utah Anti-discrimination and Labor
    Division and the Equal Employment Opportunity Commission. He filed this
    action after the administrative-claims process concluded. In his second amended
    complaint, he alleged claims for race, color, and national-origin discrimination,
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    harassment/hostile work environment, and retaliation in violation of Title VII,
    42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a). He also alleged a state-law claim for
    wrongful termination. Huish moved for summary judgment on all claims, and the
    district court granted the motion on December 21, 2010. Mr. Hoko filed a timely
    appeal.
    II. Standard of Review
    “We review the district court’s grant of summary judgment de novo,
    applying the same legal standard used by the district court.” Somoza v. Univ. of
    Denver, 
    513 F.3d 1206
    , 1211 (10th Cir. 2008) (quotation omitted). Summary
    judgment is appropriate “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). “We examine the factual record and draw all reasonable
    inferences in the light most favorable to the non-moving party.” 
    Somoza, 513 F.3d at 1211
    . We construe Mr. Hoko’s pro se appeal arguments liberally.
    See de Silva v. Pitts, 
    481 F.3d 1279
    , 1283 n.4 (10th Cir. 2007).
    III. Discussion
    In its thorough and well-reasoned order, the district court reviewed the
    elements for each of Mr. Hoko’s claims and the evidence, or lack thereof, in
    support of each claim. Like the district court, we will address each of Mr. Hoko’s
    claims in turn.
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    A. Discriminatory Harassment/Hostile Work Environment
    Mr. Hoko alleged that Huish subjected him to harassment and a hostile
    work environment based upon his race, color, and national origin. In order to
    recover on such a claim, “a plaintiff must show that a rational jury could find that
    the workplace is permeated with discriminatory intimidation, ridicule, and insult,
    that is sufficiently severe or pervasive to alter the conditions of the victim’s
    employment and create an abusive working environment.” Sandoval v. City of
    Boulder, 
    388 F.3d 1312
    , 1327 (10th Cir. 2004) (quotation omitted).
    The district court held that Mr. Hoko failed to identify any statement made
    by any agent of Huish that could constitute discrimination on the basis of race.
    Mr. Hoko claimed that Mr. McPhie harassed him by yelling at him following a
    glycerin spill that had occurred during Mr. Hoko’s shift. But the district court
    held there was no evidence that Mr. McPhie’s alleged conduct was based on racial
    animus. See Tademy v. Union Pac. Corp., 
    614 F.3d 1132
    , 1139 (10th Cir. 2008)
    (addressing claim of racially hostile work environment and stating “harassment
    must be racial or stem from racial animus” (brackets omitted)); 
    Sandoval, 388 F.3d at 1327
    (requiring “evidence from which a rational jury could infer that
    [plaintiff] was targeted for harassment because of her gender, race, or national
    origin”). The district court further concluded that, even if Mr. McPhie’s conduct
    in yelling at Mr. Hoko was racially motivated, this one isolated incident was
    neither sufficiently severe nor sufficiently pervasive to support a claim for
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    harassment/hostile work environment. See 
    Sandoval, 388 F.3d at 1327
    (holding
    two sexist comments insufficient to show workplace permeated with sexist
    abuse); MacKenzie v. City & Cnty. of Denver, 
    414 F.3d 1266
    , 1280 (10th Cir.
    2005) (noting “courts should filter out . . . isolated incidents (unless extremely
    serious)”).
    Mr. Hoko appears to raise two claims of error regarding the district court’s
    disposition of this claim. Rather than pointing to evidence in the record of severe
    or pervasive harassment based upon his race, color, or national origin, Mr. Hoko
    maintains that the employee witnesses who refuted his allegation of
    discriminatory harassment cannot be believed because Huish offered each of them
    promotions at the time they were interviewed in connection with his report of
    discrimination. His attack on the credibility of Huish’s evidence is misplaced
    because “[i]t is axiomatic that a judge may not evaluate the credibility of
    witnesses in deciding a motion for summary judgment.” Seamons v. Snow,
    
    206 F.3d 1021
    , 1026 (10th Cir. 2000). Mr. Hoko also claims that he was not
    obligated to report the harassment he suffered to Huish because it would have
    been futile. This argument is likewise unavailing because the district court did
    not base its summary judgment ruling on his failure to report harassment. It
    concluded that the single incident of alleged harassment he identified in response
    to Huish’s motion was insufficient to support a claim for harassment/hostile work
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    environment. We affirm the district court’s grant of summary judgment in favor
    of Huish on this claim.
    B. Disparate Treatment
    The district court next addressed Mr. Hoko’s claims of disparate treatment
    based upon his race, color, and national origin. He had the burden of initially
    establishing a prima facie case of race, color, and national origin discrimination
    by showing that (1) he “belongs to a protected class”; (2) he “suffered an adverse
    employment action”; and (3) “the challenged action took place under
    circumstances giving rise to an inference of discrimination.” EEOC v. PVNF,
    L.L.C., 
    487 F.3d 790
    , 800 (10th Cir. 2007). Mr. Hoko asserted that he was
    treated differently than other, similarly-situated employees, in relation to the
    incident with Mr. McPhie involving the glycerin spill and with respect to his use
    of the internet.
    “Adverse employment action includes significant change in employment
    status, such as hiring, firing, failing to promote, reassignment with significantly
    different responsibilities, or a decision causing a significant change in benefits.”
    Piercy v. Maketa, 
    480 F.3d 1192
    , 1203 (10th Cir. 2007) (quotation omitted). The
    district court held that Mr. Hoko’s treatment following the glycerin spill,
    specifically being yelled at by Mr. McPhie, did not rise to the level of an adverse
    employment action. Regarding his treatment for misusing the internet, Mr. Hoko
    argued that, while Huish disciplined other employees for their similar violations
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    of company policy by limiting their internet access, Huish left him with broader
    access and then audited his use. The district court held that the employees
    Mr. Hoko identified as being treated differently than he was were not similarly
    situated to him. Moreover, allowing Mr. Hoko to retain broader internet access
    was not an adverse employment action, as his level of access was related to his
    job responsibilities.
    Mr. Hoko argues that the district court erred in concluding that the other
    employees, whose internet access was limited in response to their misuse, were
    not similarly situated to him. But he fails to address the district court’s
    determination that neither his treatment following the glycerin spill nor Huish’s
    decision to maintain his level of internet access were adverse employment
    actions. We agree with the district court’s conclusion that Mr. Hoko failed to
    show an adverse employment action in order to establish a prima facie case of
    disparate treatment. We therefore affirm summary judgment in favor of Huish on
    these claims.
    C. Retaliation
    To support a prima facie case of retaliation, a plaintiff must show that
    (1) he “engaged in protected opposition to discrimination”; (2) he “suffered an
    adverse employment action”; and (3) “there is a causal connection between the
    protected activity and the adverse employment action.” Petersen v. Utah Dep’t of
    Corr., 
    301 F.3d 1182
    , 1188 (10th Cir. 2002) (quotation omitted). In this context,
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    an adverse employment action is any action that a reasonable employee would
    have found materially adverse, such that he “might be dissuaded from making a
    charge of discrimination.” 
    Somoza, 513 F.3d at 1213
    . Mr. Hoko alleged both
    retaliatory harassment and retaliatory termination.
    1. Retaliatory Harassment
    Mr. Hoko alleged that, in retaliation for his complaint to Mr. McPhie that
    he was managing the department in a discriminatory manner, Mr. McPhie
    harassed him by yelling at him and blaming him for the glycerin spill. The
    district court found that, according to his own chronology, Mr. Hoko complained
    to Mr. McPhie about discrimination after the incident regarding the glycerin spill.
    Thus, he failed to show a causal connection between his protected activity and
    Mr. McPhie’s alleged retaliation. Mr. Hoko also contended that Mr. McPhie’s
    request for an audit of Mr. Hoko’s internet usage was in retaliation for his
    complaint about discrimination and was done in order to preempt Mr. Hoko from
    taking his complaint to Mr. McPhie’s supervisor. The district court held that the
    request for an internet audit was not materially adverse, as it would not dissuade a
    reasonable employee from making or supporting a charge of discrimination.
    Mr. Hoko does not raise any claim of error with respect to either of these bases
    for the district court’s conclusion that he failed to establish a prima facie case of
    retaliatory harassment. We therefore affirm the district court’s grant of summary
    judgment in favor of Huish on these claims.
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    2. Retaliatory Termination
    Mr. Hoko also contended that he was terminated in retaliation for
    complaining about discrimination to Mr. McPhie. The district court assumed that
    Mr. Hoko had satisfied his burden to establish a prima facie case of retaliatory
    termination, but the court held that Huish came forward with a legitimate,
    nondiscriminatory reason for discharging him: the fact that he visited
    non-work-related internet sites repeatedly and for extended periods of time during
    his work day, in violation of company policy. Mr. Hoko does not deny that he
    used his Huish computer for non-work-related purposes.
    “If the employer provides a legitimate, non-discriminatory justification for
    the action, the burden shifts back to the employee to provide evidence showing
    that the employer’s proffered reason is a pretext for discrimination.” Stover v.
    Martinez, 
    382 F.3d 1064
    , 1071 (10th Cir. 2004). To establish a genuine issue as
    to pretext, Mr. Hoko was required to demonstrate that Huish’s stated reason was
    unworthy of belief. See Pinkerton v. Colo. Dep’t of Transp., 
    563 F.3d 1052
    , 1065
    (10th Cir. 2009).
    [He] can meet this standard by producing evidence of 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.
    
    Id. (quotation omitted).
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    Mr. Hoko contends that the district court erred in concluding that he failed
    to come forward with any evidence of pretext. He maintains that Huish’s
    violation of company policies in performing the audit of his internet usage and in
    terminating his employment based upon the audit results is evidence of pretext.
    An employer’s failure to follow its own written or unwritten policy or its
    established company practice may be relevant to a claim of pretext. See Green v.
    New Mexico, 
    420 F.3d 1189
    , 1193 (10th Cir. 2005). We do not address
    Mr. Hoko’s contentions, however, because he did not make either of these
    arguments in the district court. We decline to exercise our discretion in this case
    to consider these fact-laden issues for the first time on appeal. See United States
    v. Jarvis, 
    499 F.3d 1196
    , 1201-02 (10th Cir. 2007) (noting exception to general
    rule against considering issue on appeal that was not raised in district court
    “where the argument involves a pure matter of law and the proper resolution of
    the issue is certain”).
    Mr. Hoko repeats one argument here that he did raise in the district court.
    He claims that Huish treated differently other similarly situated employees who
    used the internet for non-work-related purposes. “A plaintiff seeking to show
    pretext often does so by providing evidence that he was treated differently from
    other similarly-situated employees who violated work rules of comparable
    seriousness.” Timmerman v. U.S. Bank, N.A., 
    483 F.3d 1106
    , 1120 (10th Cir.
    2007) (quotation omitted).
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    Mr. Hoko identifies Steve Tracy, Mike Wright, Kenneth Taua, and Matthew
    Rodriguez as Huish employees who were surfing the internet, but were not
    terminated. While he acknowledges that these other employees did not have the
    job title of Supervisor, as he did, he argues that they sometimes performed
    supervisory-type duties; therefore, he maintains that they were similarly situated
    to him. But “[s]imilarly situated employees are those who deal with the same
    supervisor and are subject to the same standards governing performance
    evaluation and discipline.” 
    Id. (quotation omitted).
    Mr. Hoko fails to point to
    evidence indicating that he and these other employees all reported to the same
    supervisor. See 
    id. at 1121
    (holding employee who did not report to plaintiff’s
    supervisor was not similarly situated to plaintiff). And his assertion that these
    other employees sometimes performed supervisory-type duties does not establish
    that they were subject to the same standards governing performance and
    discipline that someone with the title of Supervisor was. Nor does Mr. Hoko
    show that the extent of these other employees’ unauthorized internet usage was
    comparable to his. See 
    id. (holding plaintiff
    failed to produce evidence that other
    employee’s violation of the same work rule was comparable to plaintiff’s serious
    violation). The district court did not err in concluding that Mr. Hoko failed to
    support his claim of pretext with evidence of disparate treatment. We therefore
    affirm the grant of summary judgment in favor of Huish on his claim of
    retaliatory termination.
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    D. Wrongful Termination
    Mr. Hoko’s final claim was that Huish wrongfully terminated him in
    violation of the policies in its Policy Book. The district court held this claim
    failed as a matter of law because an employment contract with no specified
    duration is presumed to be at-will under Utah law. See Berube v. Fashion Centre,
    Ltd., 
    771 P.2d 1033
    , 1044 (Utah 1989). The court noted the record reflected that
    Huish repeatedly informed its employees that they were employed at-will and
    disclaimed any intent to hire them for a specified period of time. Moreover,
    Mr. Hoko signed an acknowledgment expressly stating his at-will employment
    status. Mr. Hoko fails to identify any error in the district court’s conclusion.
    We therefore affirm the grant of summary judgment in favor of Huish on his
    wrongful-termination claim.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    William J. Holloway, Jr.
    Senior Circuit Judge
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