UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SHERMAN M. HUNT, Plaintiff-Appellant,

v. RIVERSIDE TRANSPORTATION, INC., Defendant-Appellee. No. 13-3100 (D.C. No. 2:11-CV-02020-DJW) (D. Kan.)

ORDER AND JUDGMENT *

Before HARTZ , BALDOCK , and GORSUCH , Circuit Judges.
Sherman M. Hunt, proceeding pro se, appeals from the magistrate judge’s order granting summary judgment in part and dismissing in part his employment discrimination claims under Title VII of the Civil Right s Act of 1964, 42 U.S.C.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 5, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - §§ 2000e-5(g), and retaliation under 42 U.S. C. § 1981, against his former employer Riverside Transportation, Inc. (Riversi de). Exercising our jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291, we affirm. Mr. Hunt worked for Riverside pe rforming custodial duties and running business errands. In Decembe r 2010, he submitted a charge of discrimination to the Equal Employment Opportunity Commission (EEOC) alleging discrimination based on his race, “Black-African American,” in relation to an alle ged comment made by Riverside management that they would “p ut [a] mop handle up [Mr. Hunt’s] butt and make a fudge sickle out of [h im],” Aplee. App. at 9. He also claimed that Riverside forced him to drive a company vehicle instead of his own, and suspended him without pay because of his race. Mr. Hunt then filed the inst ant action pro se in January 2011, claiming Title VII race disc rimination. His complaint described the “fudge sickle” comment, and allegations that a human resources s upervisor “talk[ed] down to [him]” and “fuel[ed] hostility,” id . at 12. Riverside reduced Mr. Hunt’s hours and u ltimately terminated him in February 2011 for insubordination. Mr. Hunt imme diately filed a second charge with the EEOC alleging the termination was in retaliati on for the filing of the first charge. He requested and was appointed counsel by a magistrate judge 1 in May 2011. In an amended complaint, filed in June 2012 with the aid of his counsel, he asserted claims

1 The parties consented to proceedings , including the entry of final judgment, conducted by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). We will refer to the magistrate judge hereinaf ter as the “district court.”- 3 - for race discrimination and hostile work environment based on r ace in violation of Title VII, and retaliation under § 1981. Riverside moved for summary judgment under Fed. R. Civ. P. 56 arguing that Mr. Hunt could not establish hi s claims, or alternatively, th at he failed to exhaust his administrative remedies on his claim for hosti le work environment. Mr. Hunt failed to timely respond to Riverside’s motion fo r summary judgment, and instead filed a pro se motion to reappoint counsel. The district court constr ued the motion as a request to replace Mr. Hunt ’s court-appointed counsel. It withdrew Mr. Hunt’s appointed counsel on the basi s of health reasons, but deni ed Mr. Hunt’s request for new counsel. It permitted him to file a pro se response to Ri verside’s motion for summary judgment, which he did. The district court concluded it lack ed subject matter jurisdiction over Mr. Hunt’s hostile work environment claim as a result of his failure to exhaust administrative remedies, and it dismissed th at claim. Analyzing Mr. Hunt’s race discrimination claim unde r the traditional burden-shifting analysis in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (19 73), the district court considered whether Mr. Hunt es tablished a prima facie case. See Carney v. City & Cty. of Denver , 534 F.3d 1269, 1273 (10th Cir. 2008) (stating elements of prima facie case of racial discrimination) . It determined Mr. Hunt was a member of a protected class, and that while being required to dr ive a company vehicle did not qualify as an adverse employment action, Mr. Hunt’s th ree-day suspension di d qualify. Although- 4 - it did not explicitly consider the third elem ent of Mr. Hunt’s pr ima facie case, it appears the district court assumed that Mr. Hunt satisfied this initial requirement of McDonnell Douglas , see Aramburu v. Boeing Co ., 112 F.3d 1398, 1403 (10th Cir. 1997), as the district cour t nevertheless concluded th at Riverside proffered a legitimate, non-discriminatory reason for it s employment action: that Mr. Hunt was suspended because Riverside re ceived a motorist’s complaint that Mr. Hunt drove the company vehicle aggressively. Because Mr. Hunt did not offer any evidence showing that Riverside’s pr offered reason for the susp ension was pretextual, the district court granted summary judgme nt to Riverside on this claim. Regarding the retaliation claim under § 1981, consid ering the claim under the McDonnell Douglas burden-shifting analysis, the di strict court found Mr. Hunt established a prima faci e case of retaliation. See Twigg v. Hawker Beechcraft Corp ., 659 F.3d 987, 998 (10th Ci r. 2011) (stating elements of retaliation claim). Specifically, it found that 1) Mr. Hunt engaged in protected opposition to discrimination by filing his EEOC charge a nd the instant action; 2) a reasonable employee would consider Mr. Hunt’s reduc tion of work duties and termination of employment materially adverse; and 3) th ere was a causal connection between the protected activity and materially advers e employment actions based on temporal proximity. Riverside claimed its empl oyment actions were legitimate and nondiscriminatory. It proffered eviden ce that Mr. Hunt’s hours were reduced because he could no longer drive for the company due to the aggressive driving- 5 - complaint. It further pr offered evidence that despit e a disciplinary warning in January 2011, Mr. Hunt continued to enga ge in multiple acts of aggression and insubordination, including threatening co -workers and disrupting the workplace, which resulted in his termination. The dist rict court agreed and found that Mr. Hunt failed to present any evidence that Riverside’s actions were pretextual. Accordingly, the district court granted summary judgment to Riverside on this claim as well. Mr. Hunt now appeals. Because he is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam); Garza
v. Davis , 596 F.3d 1198, 1201 n.2 ( 10th Cir. 2010). We will not, however, act as his advocate in constructing his argumen ts and searching the record. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005). Mr. Hunt’s brief contains little to no argument, nor does it contain any citati ons to the record or cite legal authority. As best we can discern, however, on app eal he appears to argue the district court erred in dism issing his hostile work environment claim for failure to exhaust administrative reme dies, erred in granting summary judgment on his race discrimination claim, and erred in fa iling to appoint hi m new counsel. We review de novo a decision dismissing a cause of action for lack of subject matter jurisdiction. Lucero v. Bureau of Collection Recovery, Inc ., 639 F.3d 1239, 1242 (10th Cir. 2011). “Exhaustion of admi nistrative remedies is a jurisdictional prerequisite to suit under Title VII.” Jones v. Runyon , 91 F.3d 1398, 1399 (10th Cir. 1996) (internal quotation marks omitted). Mr. Hunt bears the burden to establish the- 6 - court’s subject-matter jurisdiction. See Southway v. Cent. Bank of Nigeria , 328 F.3d 1267, 1274 (10th Cir. 2003). The district court de termined that Mr. Hunt’s EEOC charge did not allege facts indicating that the workplace at Riverside is “permeated with discriminatory intimidati on, ridicule, and insult, that is sufficiently severe or pervasive to alter the cond itions of [his] employment a nd create an abusive working environment,” Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 116 (2002) (internal quotation marks omitted). We agree. Mr. Hunt did not specify that he was complaining of a hostile work environment nor did the narrative portion of his charge adequately describe a hos tile work environment. See Annett v. Univ. of Kan ., 371 F.3d 1233, 1238 (10th Cir. 2004). We agree with th e district court that Mr. Hunt’s hostile work environment claim coul d not reasonably be expected to follow the allegations contained in his charge. See Jones v. United Parcel Serv., Inc ., 502 F.3d 1176, 1187 (10th Cir. 2007). Accordingly, dism issal of this claim for failure to exhaust administra tive remedies was appropriate. Regarding the race discri mination claim, Mr. Hunt argues only that he was forced to drive the company vehicle and disput es that he ran a motorist off the road. Reviewing the grant of summary judgment de novo as we must, see Crowe v. ADT
Sec. Servs. Inc ., 649 F.3d 1189, 1194 (10th Cir. 2011) , we perceive no error. We agree with the district cour t that being required to dr ive a company vehicle does not qualify as an adverse employmen t action and, further, that Mr. Hunt failed to produce evidence demonstrating that Riverside’ s three-day suspensi on was pretextual.- 7 - We also reject Mr. Hunt’s claim that the district court erred in failing to appoint him new counsel. In denying Mr. Hunt’s motion to reappoint counsel, the district court observed that its use of appointment pow er must be prudent and thoughtful. Given the scarcity of willing a ttorneys to appoint in civil cases and the number of requests for couns el, the district court re asoned it could not justify appointing Mr. Hunt another attorney. And it found Mr. Hunt had shown an ability to represent himself. We per ceive no abuse of discretion. See Castner v. Colo. Springs Cablevision , 979 F.2d 1417, 1422-23 (10th Cir. 1992) (stating that appointment of counsel to be re viewed for abuse of discretion). We have reviewed the briefs, the record, and the applicable law. The district court accurately analyzed the issues and we agree with its anal ysis. We therefore affirm the judgment of the di strict court for substantially the same reasons explained in the district court’s memorandum and order dated April 11, 2013.

Entered for the Court
Bobby R. Baldock Circuit Judge