Dexter Duren v. URS Corporation

United States Court of Appeals
For the Eighth Circuit
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No. 16-1778
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Dexter Duren; DeArthur Grice
lllllllllllllllllllll Plaintiffs - Appellants
v.
URS Corporation
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: January 17, 2017
Filed: February 21, 2017
[Unpublished]
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Before LOKEN, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Dexter Duren and DeArthur Grice appeal the district court’s1 grant of summary
judgment dismissing certain of their employment-discrimination and retaliation
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The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
claims against URS Corporation. Reviewing the grant of summary judgment de novo,
see Inechien v. Nichols Alum., LLC, 728 F.3d 816, 819 (8th Cir. 2013), we affirm.
In November 2007, URS acquired a corporation that had been hired by the U.S.
Department of Defense to operate an incineration plant to destroy chemical weapons
at the Army’s Pine Bluff Arsenal. Duren was employed at the plant as an Information
Systems Administrator. Grice was the Information Technology Department Manager,
supervising twelve employees including Duren. That month, Duren sued URS’s
predecessor in the Eastern District of Arkansas, alleging racially discriminatory
failures to promote in 2004 and 2006. After a May 2009 bench trial at which Grice
participated as a witness, the district court ruled in favor of Duren on the 2006 claim
and entered final judgment awarding damages and attorney’s fees in August 2009.
The 2009 judgment was a primary backdrop for the claims Duren and Grice later
asserted in this lawsuit.
1. In October 2009, Grice recommended that Duren receive the IT
Department’s “Top Contributor Award” for 2009. Other URS managers favored a
white female coworker. When Grice and the other managers could not agree, no 2009
award was given. Duren subsequently received the Top Contributor Award in 2013.
The Top Contributor Award was prestigious, making the employee eligible for, but
not guaranteeing, a larger pay raise. For example, Duren received a larger percentage
raise in 2012, when he did not win the award, than in 2013, when he did.
In this lawsuit, plaintiffs claim that Duren was denied the 2009 Top
Contributor Award based on his race and in retaliation for his prior successful
lawsuit. The district court dismissed the race discrimination claim because (i) no
award was given in 2009, so no similarly situated white employee was treated
differently, and (ii) denial of the award was not a material adverse employment
action. The court dismissed the retaliation claim because (i) denial of the award was
not a materially adverse action, as that element of a retaliation plaintiff’s prima facie
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case was defined in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67
(2006) (“well might have dissuaded a reasonable worker from making or supporting”
a protected claim), and (ii) Duren failed to offer evidence connecting denial of the
award to his prior lawsuit. In the Statement of Issues presented in their Brief of
Appellants on appeal, plaintiffs argue that denial of an “employment opportunity”
such as the Top Contributor Award on account of race is unlawful “[e]ven in the
absence of a monetary loss,” and that the proximity in time between the denial and
Duren’s prior lawsuit presented a triable claim of unlawful retaliation. After careful
review of the summary judgment record, we affirm dismissal of these claims for the
reasons stated by the district court. See 8th Cir. R. 47B.
2. In November 2009, URS reclassified job titles for IT employees at several
facilities, including the Pine Bluff Arsenal plant. URS eliminated the Grade 16 IT
Manager job title, Grice’s prior classification. URS initially reclassified Grice as an
IT Project Manager - Grade 15. After Grice filed an internal complaint, URS
conducted a further review and reclassified Grice as an IT Manager II - Grade 17.
Neither reclassification affected his pay. In this lawsuit, plaintiffs claim that Grice
was demoted on account of his race and in retaliation for his participation in Duren’s
prior lawsuit. The district court dismissed these claims because Grice failed to
demonstrate an adverse employment action as a result of the reclassification. Again,
after careful review of the summary judgment record, we affirm dismissal of these
claims for the reasons given by the district court.
3. In the summary judgment proceedings, Duren and Grice also complained
about other allegedly discriminatory and retaliatory actions by URS between July
2010 and its final closure of the incineration plant at the Pine Bluff Arsenal in
December 2013, after the Arsenal’s chemical weapons had been destroyed. The
district court discussed some of these claims in its summary judgment Order, and
plaintiffs renew some of the complaints in their brief on appeal. However, most of
these claims were not included in plaintiffs’ Complaint. Even more significantly,
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none was included in their Statement of Issues on appeal, which defines the issues
properly before us, and none was sufficiently developed in plaintiffs’ brief on appeal.
See F.R.A.P. 28(a)(5); 8th Cir. R. 28A(i). Accordingly, we decline to consider these
claims, which were either never raised in the district court, or have been abandoned
on appeal. See Griffith v. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004);
Hays v. Hoffman, 325 F.3d 982, 986 n.2 (8th Cir.), cert. denied, 540 U.S. 877 (2003).
The judgment of the district court is affirmed.
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