Richardson v. Albertson's, Inc. ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 7/29/96
TENTH CIRCUIT
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ROBERT RICHARDSON,
Plaintiff-Appellant,
v. No. 96-1036
(D.C. No. 94-B-1774)
ALBERTSON'S, INC., a Delaware (D. Colorado)
Corporation,
Defendant-Appellee.
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ORDER AND JUDGMENT *
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Before BRORBY, EBEL and HENRY, Circuit Judges.
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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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Appearing pro se, Robert Richardson appeals the district court's order
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
granting Albertson's motion for summary judgment on his claims that Albertson's
termination of his employment violated the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq., and 42 U.S.C. §1981. We affirm.
Albertson's terminated Mr. Richardson from his position as a baker on
August 7, 1993. Mr. Richardson, an African American, claims he was fired for
being absent from work for two days without having a doctor's note for
verification while white employees were not required to produce doctor's notes
for similar absences. Albertson's claims they fired Mr. Richardson "for failing to
report to work as scheduled, failing to comply with a reasonable request that he
provide documentation concerning his absence, and because of Albertson's belief
that he lied about the events of June 2-5, 1992, asked a co-worker to lie for him,
and falsely denied reporting to work."
Prior to filing his complaint in district court, Mr. Richardson was required
to exhaust his administrative remedies regarding his claims under the Americans
with Disabilities Act and Title VII. 42 U.S.C. § 2000e-5; 42 U.S.C. § 12117(a);
Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993). He attempted to do this by
filing a claim with the Equal Employment Opportunity Commission (the
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"Commission"). In its determination letter, the Commission found "Charging
party has failed to provide, medical documentation to show that he is a qualified
individual as required by the ADA. Therefore, the Commission finds that it has
no jurisdiction on the allegations filed under the Americans with Disabilities
Act." We have held that "when a complainant refuses or fails to provide the
agency information sufficient to evaluate the merits of the claim, he or she cannot
be deemed to have exhausted administrative remedies." Khader, 1 F.3d at 971(internal quotation marks omitted). We therefore agree with the district court's
finding that it lacked jurisdiction over Mr. Richardson's claim under the
Americans with Disabilities Act because by failing to provide the Commission
with the documents it needed to determine his claim, he failed to adequately
exhaust his administrative remedies.
The Commission's letter did dismiss Mr. Richardson's Title VII claims on
the merits. We agree with the district court that he failed to show any evidence of
racial discrimination and his Title VII claim and his § 1981 claim were properly
dismissed on summary judgment. See Patterson v. McLean Credit Union, 491
U.S. 164, 186-87 (1989) (same analysis applies to Title VII and § 1981 claims).
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), an
employee carries the initial burden of establishing a prima facie case of racial
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discrimination. If this is done, the burden then shifts to the employer to show a
legitimate, non-discriminatory reason for terminating the plaintiff. Id. If the
employer does so, the burden then shifts back to the plaintiff to establish the
employer's reasons as pretext. Id. at 804; Randle v. City of Aurora, 69 F.3d 441,
451 (10th Cir. 1995). The district court found:
Assuming that Richardson can set forth a prima facie case of racial
discrimination, Albertson's has met its burden of setting forth a
legitimate non-discriminatory reason for terminating him.
Albertson's proffers affidavits of four employees who confirm the
events of June 2 through 5. These facts are uncontroverted based on
Richardson's failure to provide evidence other than his own
conclusory allegations regarding these events. Therefore, Richardson
presents no evidence that the proffered reasons for his termination
were pretextual. Accordingly, he fails to set forth a prima facie case
of racial discrimination and Albertson's is entitled to summary
judgment on Richardson's Title VII and § 1981 claims.
After liberally construing the record, the only evidence we can find that Mr.
Richardson offers of race discrimination are his unsupported allegations white
coworkers were not fired for failing to report to work and his statement that he
has shown "his witness and produce[d] evidence to show a genuine issue in his
pretrial disclosures." He fails to identify who this witness is or what their
testimony would be; nor does he identify any non-minority coworkers who were
treated differently than he was. He also fails to provide any evidence to dispute
the legitimate reasons Albertson's gave for terminating him. Mere conclusory
allegations unsupported by any evidence are not enough to withstand a motion for
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summary judgment.
The order of the district court is AFFIRMED.
Entered for the Court:
WADE BRORBY
United States Circuit Judge
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