Desai v. Panguitch Main Street, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2013
Elisabeth A. Shumaker
Clerk of Court
HARSHAD P. DESAI,
Plaintiff-Appellant,
v. No. 12-4197
(D.C. No. 2:04-CV-00691-DAK)
PANGUITCH MAIN STREET, INC.; (D. Utah)
PANGUITCH CITY CORPORATION,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.
Harshad P. Desai, proceeding pro se, appeals the district court’s dismissal of
his employment discrimination complaint under Title VII of the Civil Rights Act of
1964. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Mr. Desai filed suit against defendants Panguitch City Corporation (the
“City”), a Utah municipal corporation, and Panguitch Main Street, Inc. (“Main
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Street”), a non-profit corporation organized with help from the City to preserve and
revitalize the City’s downtown area. Mr. Desai, a native of India who lives and owns
a hotel in the City, alleged that in July 2003, and July 2004, he was not hired by
defendants as Main Street’s Manager because of his race, color, religion, and national
origin.
The district court granted summary judgment in favor of defendants on
Mr. Desai’s Title VII claim under Fed. R. Civ. P. 56. It ruled that Mr. Desai failed to
establish a prima facie discriminatory failure-to-hire claim because he had not
demonstrated that he was qualified for the Main Street Manager position.
See Fischer v. Forestwood Co., Inc., 525 F.3d 972, 982-83 (10th Cir. 2008) (stating
elements of prima facie racial and religious discrimination claims, which include
demonstrating that plaintiff was qualified for the position). Specifically, the court
ruled that Mr. Desai had not demonstrated that he met the Main Street Manager job
requirement that he have the ability to work well with the public, governmental
entities and diverse personalities. The court cited the evidence that Mr. Desai had
accused public officials of embezzlement, bribery and dishonesty and had numerous
disputes with local officials and business owners. Further, the court ruled that
Mr. Desai did not demonstrate that he had experience running a public entity or
public program.
The court also ruled that, even assuming for the sake of argument that
Mr. Desai had established a prima facie case, the defendants had met their burden of
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articulating a legitimate, nondiscriminatory reason for not hiring Mr. Desai—namely,
that those hired were more qualified than Mr. Desai—and Mr. Desai had not met his
responsive burden to show that the proffered reason was so weak, implausible,
inconsistent or incoherent that a reasonable fact-finder could rationally find it
unworthy of belief and, thus, infer it was pretext for discrimination. See Turner v.
Public Service Co. of Colorado, 563 F.3d 1136, 1142-43 (10th Cir. 2009) (describing
burden-shifting framework and analysis). Mr. Desai’s asserted basis for pretext was
the fact that both persons selected for the Main Street Manager position left after a
year, which the district court ruled was insufficient to infer that defendants did not
act for the asserted non-discriminatory reasons given. The district court then
dismissed Mr. Desai’s remaining claims, in which he alleged that defendants and the
local community were conspiring against him, for failure to state a plausible claim
under Fed. R. Civ. P. 12(b)(6). See Berneike v. CitiMortgage, Inc., 708 F.3d 1141,
1144 (10th Cir. 2013) (“To survive dismissal under Rule 12(b)(6) for failure to state
a claim, plaintiffs must nudge their claims across the line from conceivable to
plausible.” (alteration and internal quotation marks omitted)).
We review de novo both a district court’s dismissal for failure to state a claim
under Rule 12(b)(6), and its grant of summary judgment under Rule 56. Santana v.
City of Tulsa, 359 F.3d 1241, 1243 (10th Cir. 2004). Because Mr. Desai is pro se, we
liberally construe his filings, but we will not act as his advocate. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Much of Mr. Desai’s
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brief is incomprehensible and contains little or no cogent argument that the district
court committed reversible error.1 It is replete with ad hominem attacks on
defendants,2 and fails to state the issues on appeal and the facts relevant to the issues,
with citations to the record, or cite to relevant legal authority, all as required by
Fed. R. App. P. 28.3 “[A]lthough we make some allowances for the pro se plaintiff’s
failure to cite proper legal authority, his confusion of various legal theories, his poor
1
For example, Mr. Desai claims: “the court applied ‘scintilla (spark, splinter,
etc.)’ approach in [granting] [s]ummary [j]udgment . . . as a substitute for a ‘house on
fire’ size and nature of the case,” Aplt. Opening Br. at 6; the “court failed to address
Defendant’s discrimination/[e]xclusion of plaintiff[, p]seduo ownership, dictatorship,
double standard, egoism, arrogance, etc., are in DNA of defendants,” id. at 8; “the
court had/has two possibilities (the district court’s burden) – (i) [i]s the plaintiff
bacteria in clean swimming pool? or (ii) [i]s the plaintiff a drop of [c]hlorine in
cesspool infested with bacteria and viruses?”; id. at 10; “[t]he district court’s
positions (rulings and lack of rulings) is in disconnect based on facts like . . . ‘100%
of like’ creates inefficient system[, and] [k]knowingly abstaining factors, prongs that
puts [him] at more qualification in totality is illegal game,” id. at 45.
2
As just a few examples, “[t]he defendants (city, council, mayor, city attorney)
engaged in cover up, run [a]way from the plaintiff,” id. at 4; “[d]efendants are like
Taliban operations in mountain region of Afghanistan in caves,” id. at 13;
“[d]efendants’ culture [is] Hell with laws, morality, ethics, public, citizens, tax
payers, etc.,” id. at 14.
3
Federal Rule of Appellate Procedure 28 requires an appellant’s brief to contain
“a statement of the issues presented for review,” Fed. R. App. P. 28(a)(5), “a
statement of facts relevant to the issues submitted for review with appropriate
references to the record,” Fed. R. App. P. 28(a)(7), as well as an argument section
comprised of “appellant’s contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies” and “a concise
statement of the applicable standard of review,” Fed. R. App. P. 28(a)(9). Mr.
Desai’s brief fails to reasonably comply with these requirements. Pro se parties must
follow the same rules of procedure that govern other litigants. Garrett, 425 F.3d at
840.
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syntax and sentence construction, or his unfamiliarity with pleading requirements, the
court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett, 425 F.3d at 840(brackets, citation, and internal quotation marks omitted).
We have reviewed the record, the briefs, and the relevant legal authority. In a
detailed and well-reasoned opinion, the district court accurately analyzed the issues,
and we agree with its conclusion that Mr. Desai failed to demonstrate that he was
qualified for the Main Street Manager position and, thus, failed to meet his burden to
establish a prima facie failure-to-hire discrimination claim. We further agree with its
ruling that Mr. Desai’s remaining purported claims fail to state plausible causes of
action. We therefore affirm the ruling for substantially the same reasons explained
by the district court in its memorandum decision and order dated November 8, 2012.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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