Brown v. Value Family Properties West

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 23, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
MARLIN B. BROWN,
Plaintiff-Appellant,
v. No. 08-6101
(D.C. No. 5:07-CV-00814-R)
VALUE FAMILY PROPERTIES, (W.D. Okla.)
LLC,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
Plaintiff-appellant Marlin Brown, appearing pro se, appeals the district
court’s grant of summary judgment to defendant-appellee Value Family
Properties, LLC. The district court determined that the possible allegations raised
by Mr. Brown, who appeared pro se in that court as well, were discrimination
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
based on national origin and race. Specifically, the court concluded that Mr.
Brown was apparently claiming that his boss David Craig, a property manager
employed by Value Family, had harassed him and constructively discharged him
from his job as a maintenance man, and also had subjected him to a “Discipline
Interview,” possibly in retaliation for an Equal Employment Opportunity
Commission charge he had filed.
The district court held that Mr. Brown had not properly exhausted his
administrative remedies in regard to any national origin discrimination claim and
had failed to even identify his national origin. The court held that he had failed
to establish a prima facie case of racial discrimination mainly on the ground that
he had failed to show that any similarly-situated employees were treated
differently than he was. This was based on Mr. Brown’s testimony that the other
maintenance men where he worked, who were not members of a protected class,
were also treated poorly by Mr. Craig and also quit their jobs. As to Mr. Brown’s
retaliation claim, the court found that asking Mr. Brown to undergo the interview
and sign the form was not tantamount to retaliation. The court granted summary
judgment and Mr. Brown appealed.
We have jurisdiction over this appeal under 28 U.S.C. § 1291.
We review the grant of a motion for summary judgment
de novo, applying the same standard as the district court. Summary
judgment is appropriate if there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.
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We examine the record and all reasonable inferences that might be
drawn from it in the light most favorable to the non-moving party.
T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte County, 546 F.3d 1299, 1306
(10th Cir. 2008) (quotations, citation, and alteration omitted).
We begin by noting that after Value Family filed its motion for summary
judgment, Mr. Brown filed his own untimely motion for summary judgment,
which the district court considered as a response to Value Family’s motion.
Mr. Brown’s motion consisted of little more than a one page list of exhibits,
an affidavit, and the exhibits themselves. From this filing the district court
attempted to interpret Mr. Brown’s argument and Mr. Brown makes no complaint
regarding its interpretation.
Mr. Brown’s appellate brief is similarly deficient. His statement of facts is
simply a list of seven exhibits, although not all of the listed exhibits are attached
to the complaint. His first issue on appeal is “Mr. Craig did not make winterizing
[a] prior[ity].” Aplt. Opening Br. at 3. His second issue on appeal is “Discipline
action form was change have [sic] to different dates 11-2-06 to 11-8-06.” Id.Although Mr. Brown’s brief is deficient in a number of ways, the main weakness
is that it does not even identify the district court’s main holding, i.e., that he
presented no evidence suggesting any racial motive behind his difficulties, much
less make an argument that the holding was incorrect.
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For that reason, the district court’s summary judgment against Mr. Brown
is AFFIRMED for the reasons set forth in its April 28, 2008, order.
Entered for the Court
Monroe G. McKay
Circuit Judge
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