* 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

FILED

United States Court of Appeals

Tenth Circuit

December 23, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARLIN B. BROWN,

Plaintiff-Appellant,

v.

VALUE FAMILY PROPERTIES,

LLC,

Defendant-Appellee.

No. 08-6101

(D.C. No. 5:07-CV-00814-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before MURPHY, McKAY, and ANDERSON, Circuit Judges.

Plaintiff-appellant Marlin Brown, appearing pro se, appeals the district

court’s grant of summary judgment to defendant-appellee Value Family

Properties, LLC. The district court determined that the possible allegations raised

by Mr. Brown, who appeared pro se in that court as well, were discrimination
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based on national origin and race. Specifically, the court concluded that Mr.

Brown was apparently claiming that his boss David Craig, a property manager

employed by Value Family, had harassed him and constructively discharged him

from his job as a maintenance man, and also had subjected him to a “Discipline

Interview,” possibly in retaliation for an Equal Employment Opportunity

Commission charge he had filed.

The district court held that Mr. Brown had not properly exhausted his

administrative remedies in regard to any national origin discrimination claim and

had failed to even identify his national origin. The court held that he had failed

to establish a prima facie case of racial discrimination mainly on the ground that

he had failed to show that any similarly-situated employees were treated

differently than he was. This was based on Mr. Brown’s testimony that the other

maintenance men where he worked, who were not members of a protected class,

were also treated poorly by Mr. Craig and also quit their jobs. As to Mr. Brown’s

retaliation claim, the court found that asking Mr. Brown to undergo the interview

and sign the form was not tantamount to retaliation. The court granted summary

judgment and Mr. Brown appealed. 

We have jurisdiction over this appeal under 28 U.S.C. § 1291.

We review the grant of a motion for summary judgment

de novo, applying the same standard as the district court. Summary

judgment is appropriate if there is no genuine issue as to any material

fact and the movant is entitled to judgment as a matter of law. 
-3-

We examine the record and all reasonable inferences that might be

drawn from it in the light most favorable to the non-moving party.

T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte County, 546 F.3d 1299, 1306

(10th Cir. 2008) (quotations, citation, and alteration omitted).

We begin by noting that after Value Family filed its motion for summary

judgment, Mr. Brown filed his own untimely motion for summary judgment,

which the district court considered as a response to Value Family’s motion. 

Mr. Brown’s motion consisted of little more than a one page list of exhibits,

an affidavit, and the exhibits themselves. From this filing the district court

attempted to interpret Mr. Brown’s argument and Mr. Brown makes no complaint

regarding its interpretation.

Mr. Brown’s appellate brief is similarly deficient. His statement of facts is

simply a list of seven exhibits, although not all of the listed exhibits are attached

to the complaint. His first issue on appeal is “Mr. Craig did not make winterizing

[a] prior[ity].” Aplt. Opening Br. at 3. His second issue on appeal is “Discipline

action form was change have [sic] to different dates 11-2-06 to 11-8-06.” Id. 

Although Mr. Brown’s brief is deficient in a number of ways, the main weakness

is that it does not even identify the district court’s main holding, i.e., that he

presented no evidence suggesting any racial motive behind his difficulties, much

less make an argument that the holding was incorrect.
-4-

For that reason, the district court’s summary judgment against Mr. Brown

is AFFIRMED for the reasons set forth in its April 28, 2008, order.

Entered for the Court

Monroe G. McKay

Circuit Judge