* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

REGINALD CHARLES HORNER, Plaintiff - Appellant, No. 98-5223

v. (D.C. No. 97-CV-1103) INCOME PRODUCING MANAGEMENT OF OKLAHOMA, INC., (N.D. Okla.)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before TACHA , McKAY , andMURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. Plaintiff Reginald Charles Horner filed this action against his former employer alleging discrimination and retaliation in violation of the Americans1 Plaintiff also asserted that he was discriminated a gainst in violation of

Title VII of the Civil Rights Act, 42 U.S.C. § 2000 e to 2000e-17. However, Title VII prevents discrimination only on the basis of ra ce, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). Because Plaintiff has not alleged facts related to any of these prohibited bases for discrimination, he has not stated a claim pursuant to Title VII. In addition, Plaint iff set forth a pendent state law claim alleging “intentional and/or negligent inflic tion of emotional distress” in his complaint. R., Doc. 11 at 5. By failing to raise this claim on appeal, Defendant has waived it. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating that issue not raised in opening brief is waived). -2- with Disabilities Act, 42 U.S.C. §§ 12101-12213. 1 The district court entered summary judgment in favor of Defendant Income Produ cing Management of Oklahoma, Inc., and Plaintiff now appeals. We revi ew the district court’s grant of summary judgment de novo and apply the same lega l standard used by the district court pursuant to Rule 56(c) of the Federa l Rules of Civil Procedure. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). We affirm i f there is no genuine issue as to any material fact and Defendantis entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Defendant owns and operates franchises of Wendy’s f ast food restaurants in Tulsa, Oklahoma. From September 17, 1996, to April 14, 1997, Plaintiff worked as a grill cook at one of Defendant’s Wendy’s resta urants. When Plaintiff first began working at Wendy’s, his immediate supervisor was Rhonda Farley. During his initial job interview with Ms. Farley, Plaintif f asked for limited work hours so that he could receive dialysis treatments three day s a week for his kidney disease.-3-

He also requested less than full-time hours so thathe could continue to receive Social Security Administration disability payments. Ms. Farley honored both of Plaintiff’s requests. She allowed him to work limi ted hours and to leave work by 4:30 p.m. to attend dialysis treatments at 5:00 p.m . on Mondays, Wednesdays, and Fridays. Plaintiff’s complaint stems from an incident which occurred on December 6, 1996. On that day, Ms. Farley asked Pl aintiff for a fry count, but he was slow in responding due to a speech impediment. Plaintiff’s delay prompted Ms. Farley to say, “Reggie, if you don’t hurry and tell me the fry count, I will slap you in the mouth with my spatula.” R., Doc. 61 at 2. Plaintiff alleges that customers and his coworkers heard Ms. Farley’s comm ent and that he suffered embarrassment and hurt feelings as a result. Plain tiff subsequently wrote a letter to manager Allen Rowan complaining about Ms. Farley ’s statement. In response, Mr. Rowan spoke in person with both Plaintiff and M s. Farley about the incident, and he assured Plaintiff that nothing like that wou ld happen again. Plaintiff further alleges that Ms. Farley, in retal iation for his complaint to Mr. Rowan, prevented him from leaving at 4:30 p.m. to make his dialysis treatments. However, although Plaintiff was an hou r late for a dialysis treatment on one occasion, he admits that he never missed anydialysis treatments while he was employed at Wendy’s.-4-

In February 1997, Ms. Farley was transferred to ano ther Wendy’s restaurant and James Baxter became Plaintiff’s new supervisor. Plaintiff did not experience any difficulties in working with Mr. Baxter until April 14, 1997, when Mr. Baxter asked Plaintiff to work past his regular shift due to a staffing shortage. Plaintiff told Mr. Baxter that he could not work late, at whi ch point Plaintiff alleges that Mr. Baxter told him he could not let him off the cl ock because he did not have another grill cook. Plaintiff told Mr. Baxter thathe had no choice but to resign because he had to have his dialysis treatments. He then walked off the job, stating that the working conditions were intolerabl e. The day after this incident, on April 15, 1997, the president of human resources at Wendy’s, Roger Bolton, wrote a letter to Plaintiff apologizing for the misunderstanding with Mr. Baxter. The letter state s that Mr. Baxter apparently did not know that Plaintiff had to leave work for m edical reasons. In addition, Mr. Bolton offered to pay Plaintiff back-pay and to reinstate his employment either at the same Wendy’s with the same supervisoror at another Wendy’s with a different supervisor. Mr. Bolton also offered to g ive Plaintiff the same schedule he previously had or to make any adjustments to his schedule necessary “to allow [him] to get whatever treatment [he] need[s], whene ver it is required.” Appellee’s App., Doc. 16. Plaintiff did not acceptthis offer of reinstatement. Approximately two weeks after Plaintiff resigned fr om Wendy’s, he-5-

obtained employment as a production worker through Express Temporaries at Bama Pie. Initially, Plaintiff worked forty-eight hours a week at $6.00 per hour, but he ultimately became a permanent employee of Ba ma Pie, working forty hours a week at $8.60 per hour. Plaintiff worked sixteen hours a week at $4.75 per hour during his employment with Wendy’s. In an Order filed October 29, 1998, the district co urt granted Defendant’s motion for summary judgment with respect to each of Plaintiff’s claims. Plaintiff timely filed a notice of appeal and the district co urt granted him leave to proceed in forma pauperis on appeal. On appeal, Plaintiff raises essentiall y the same claims he asserted in his complaint and alleges that he has raised genuine issues of material fact. We exercise jurisdiction pursuan t to 28 U.S.C. § 1291. To establish a prima facie case of discrimination u nder the ADA, Plaintiff must show that: (1) he is disabled within the mean ing of the ADA; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) he suffered an adverse emplo yment action under circumstances giving rise to an inference of discri mination based on disability.
See Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). Because Plaintiff argues that the adverse employment action he suffered was that he was constructively discharged, he “must produce evidenc e that the ‘employer by its illegal discriminatory acts has made working condit ions so difficult that a-6-

reasonable person in [Plaintiff’s] position would f eel compelled to resign.’” Thomas v. Denny’s, Inc. , 111 F.3d 1506, 1514 (10th Cir.) (internal quotati on marks and citations omitted), cert. denied , __ U.S. __, 118 S. Ct. 626 (1997); see also Hammon v. DHL Airways, Inc. , 165 F.3d 441, 450 n.10 (6th Cir. 1999) (“Constructive discharge occurs when ‘working condi tions [are] . . . so difficult or unpleasant that a reasonable person in the emplo yee’s shoes would have felt compelled to resign.’” (citation omitted)); Reynold s v. School Dist. No. 1, Denver, Colo. , 69 F.3d 1523, 1534 (10th Cir. 1995) (stating thatthe third element of prima facie case is met if the plaintiff shows t hat the defendant “subjected [him] to working conditions that a reasonable perso n would view as intolerable”). The district court held that Plaintiff could not st ate a claim because he did not suffer any adverse employment action nor did he est ablish that he was constructively discharged. See R., Doc. 61 at 5-6. Assuming without deciding that Plaintiff has establ ished the first two elements of a prima facie case, we agree with the d istrict court that Plaintiff has not raised a genuine issue of material fact with re spect to constructive discharge. In response to Plaintiff’s complaint regarding Ms. Farley’s derogatory statement to him, the manager, Mr. Rowan, responded quickly a nd effectively to ensure that such an incident would not occur again. After the incident, Plaintiff did not experience any unfair or demeaning treatment by Ms. Farley. Additionally,-7-

Plaintiff’s claim that Ms. Farley retaliated agains t him by attempting to prevent him from leaving at 4:30 p.m. to attend his dialysi s treatments has no merit. The record shows that Plaintiff did not miss any dialys is treatments and he was late for only one dialysis treatment during his entire e mployment at Wendy’s. Under these circumstances, we conclude that Plaintiff has not shown that the working conditions at his place of employment were so intol erable that a reasonable employee would feel compelled to resign. Thus, Pla intiff has failed to state a claim of discrimination under the ADA. We also agree with the district court that Plaintif f has not suffered any damages as a result of Defendant’s treatment of him . Not only has Plaintiff failed to show that he was constructively discharged but a lso Defendant’s offer to reinstate Plaintiff, to provide him with back pay f or any missed working hours, and to adjust his working conditions in any way nec essary to allow him to attend his dialysis treatments undercuts any claim that he suffered damages as a result of Defendant’s conduct. Further, even if Plaintiff ha d succeeded in showing that he had suffered the loss of his employment, his subseq uent employment at Bama Pie, where he works longer hours and earns a higher wage , mitigates any damages he allegedly may have suffered. Plaintiff’s retaliation claim reveals similar short comings. To establish a prima facie case of retaliation under the ADA, Plai ntiff must show: “(1)-8-

protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee’s protected actio n; and (3) a causal connection between the employee’s action and the employer’s adverse action.” Morgan , 108 F.3d at 1324. In this case, Plaintiff can on ly establish the first element, i.e., that he engaged in protected action by submitting a written complaint regarding his supervisor, Ms. Farley, andthe derogatory remark she made to him. Plaintiff cannot establish adverse employment action because he was not terminated, he has failed to make a showing of constructive discharge, and he never missed a dialysis treatment during his employment at Wendy’s. Moreover, Plaintiff’s allegation that his superviso rs refused “to let [him] off work in time” for his dialysis treatments is unsupportedby the record. Appellant’s Opening Br. at 2. We therefore agree with the dist rict court that Plaintiff has not stated a claim of retaliation under the ADA.

The district court’s entry of summary judgment in f avor of Defendant is2 In connection with this appeal, Appellant filed a “ Motion for Appeals

Court[’]s Full Consideration for a Judgment AgainstAppelle[e].” Having reviewed this motion, we now construe it as a petit ion for a hearing en banc, and we deny it because en banc consideration is not “ne cessary to secure or maintain uniformity of the court’s decisions” nor do Plainti ff’s arguments “involve[] a question of exceptional importance.” Fed. R. App. P. 35(a)(1)-(2). -9- AFFIRMED

. 2

Entered for the Court

Monroe G. McKay Circuit Judge