Hubbard v. United Services Automobile Ass'n , 264 F. App'x 696 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
February 7, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RON HUBBARD,
Plaintiff-Appellant,
v. No. 07-1098
(D.C. No. 05-cv-927-WDM)
UNITED SERVICES AUTOMOBILE (D. Colo.)
ASSOCIATION, also known as
USAA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and ANDERSON, Circuit Judges.
Plaintiff Ron Hubbard appeals from an order of the district court granting
summary judgment to defendant United Services Automobile Association (USAA)
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
on his federal and common law claims of employment discrimination and
retaliation. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Mr. Hubbard, a white male born in August 1951, was an employee of
USAA from 1991 until mid-2004, when he resigned to take a position with
another company. He asserted that he was denied interviews for virtually every
job opening at USAA for which he applied. In December 2003, he interviewed
for a position as a Casualty Claims Examiner. Two other candidates were
ultimately chosen. After being denied a Casualty Claims Examiner position,
Mr. Hubbard complained to his manager that he felt that only younger females
and minorities were being selected for positions. He asserted that this resulted in
an investigation into whether he had made a racial slur about “Orientals.” He
also made an official complaint that he was being denied interviews because of
his age. He asserted that after making this complaint, his performance appraisal
was changed from “exceeds expectations” to “meets expectations,” which made
him ineligible to obtain any other job interviews for that year. In July 2004,
USAA mandated that all employees sign an agreement providing for mandatory
arbitration of all claims of discrimination or be terminated. Mr. Hubbard
resigned. He filed a charge with the Equal Employment Opportunity Commission
on September 28, 2004, asserting that USAA forced him out of his position due to
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age discrimination, reverse race discrimination, reverse gender discrimination,
and retaliation.
The district court granted USAA’s motion for summary judgment,
reviewing only those incidents for which Mr. Hubbard’s administrative complaint
was timely filed. The court noted that Mr. Hubbard admitted that he had no direct
evidence of discrimination and therefore evaluated his claims of discrimination
and retaliation under the burden-shifting approach set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). USAA did not dispute
that Mr. Hubbard could establish a prima facie case of age discrimination with
respect to its decision not to promote him to Casualty Claims Examiner. The
court held, however, that Mr. Hubbard had not established a prima facie case with
respect to his other claims. The court concluded that even if Mr. Hubbard had
established a prima facie case as to any of his claims, there was no evidence in
the record to suggest that USAA’s reasons for its allegedly adverse employment
decisions were a pretext for unlawful discrimination or retaliation.
We review the grant of summary judgment de novo, construing the record
in the light most favorable to Mr. Hubbard, the non-moving party, and resolving
all reasonable inferences in his favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 670 (10th Cir. 1998). A defendant seeking summary judgment bears the
initial burden of showing the absence of a genuine issue of material fact,
including a lack of evidence supporting the plaintiff’s claims. See id. at 670-71.
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If the defendant meets that burden, the plaintiff cannot rest on his pleadings;
rather, “the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.” Id. at 671. “Thus, although
our review is de novo, we conduct that review from the perspective of the district
court at the time it made its ruling, ordinarily limiting our review to the materials
adequately brought to the attention of the district court by the parties.” Id. We
are not obligated to comb the summary judgment record and make plaintiff’s case
for him by locating materials that he did not reference to the district court. See
id. at 672. “Thus, where the burden to present such specific facts by reference to
exhibits and the existing record was not adequately met below, we will not
reverse a district court for failing to uncover them itself.” Id.Mr. Hubbard argues on appeal that there are disputed issues of material fact
and that the district court erred in granting summary judgment to USAA: (1) on
his age discrimination claim; (2) on his reverse race discrimination claim; (3) on
his reverse gender discrimination claim; and (4) on his retaliation claim. He
insists that he was better qualified than the candidates chosen for the job he
desired, even though USAA presented evidence that it considered the candidates
it selected to be better qualified.
Mr. Hubbard’s reference to specific facts in support of his claims is sparse,
at best. Indeed, the district court stated that Mr. Hubbard “did not provide a
response to USAA’s statement of undisputed facts, nor did he include a statement
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of additional undisputed (or disputed) facts[, and he] did not provide specific
references to record material to establish the facts, disputed or undisputed.”
District Ct. Order on Mot. for Summ. J. at 1.
We have carefully examined the parties’ briefs, the record (to the extent
that Mr. Hubbard referenced specific evidence to the district court), and the
district court’s order in light of the governing law. We conclude that the district
court correctly decided this case, and we AFFIRM for substantially the same
reasons as those thoroughly explained in the district court’s order entered on
February 5, 2007.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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