UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JAMES LEE LISTER, 

 Plaintiff - Appellant, 

v. 

WESTERN INDUSTRIES 

CORPORATION, 

 Defendant - Appellee. 

No. 19-3251 

(D.C. No. 6:17-CV-01204-EFM) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BRISCOE, and CARSON, Circuit Judges. 

_________________________________ 

James Lee Lister appeals the district court’s grant of summary judgment in 

favor of Western Industries Corporation on his pro se claim asserting racial 

discrimination in violation of 42 U.S.C. § 1981. Exercising jurisdiction pursuant to 

28 U.S.C. § 1291, we affirm. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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 

July 19, 2021

Christopher M. Wolpert 

Clerk of Court
2 

I. BACKGROUND1

In November 2015, Mr. Lister was working for Manpower, a national staffing 

agency that connects temporary workers with employers. He was assigned to work at 

Western in a temporary position as a Laborer/Saw Operator working with a crew on a 

large saw machine. 

A. Western’s Safety Protocol for Operating the Saw Machine

The crew member operating the saw machine from the control panel was 

deemed the saw operator. Due to the size of the machine, the saw operator was not 

able to determine from his position at the control panel whether a coworker or debris 

was near the saw blade located in the machine’s middle section. For that reason, 

Western’s safety protocols called for specific steps before starting the saw machine. 

First, the saw operator was required to yell “clear.” Second, one of the other 

members of the saw crew was required to visually inspect the saw area by walking 

around the machine to ensure the saw area was free of debris and clear of workers. 

Third, upon completion of this visual inspection, that crew member was required to 

yell “clear” or “all clear,” at which point the saw operator could turn the saw machine 

on. Mr. Lister received training on this safety protocol on his first day of work at 

Western. 

1

 We derive the background facts from the undisputed facts as stated in the 

district court’s summary judgment order, noting where the parties’ versions of the 

relevant events diverge. 
3 

B. The Safety Protocol Violation and Mr. Lister’s Termination

On January 19, 2016, Mr. Lister was assigned to a saw crew with two other 

temporary workers: Edward Huckabey and John Cooper. Mr. Huckabey was the saw 

operator. At some point the saw machine was turned off for maintenance on the saw 

blade. When the maintenance was completed, Mr. Huckabey returned to the 

machine’s control panel and yelled either “clear” or “are you guys ready?” 

Mr. Lister, who was standing on the opposite side of the machine from the control 

panel, replied “all clear.” But Mr. Lister had not walked around the saw machine to 

verify that the saw blade in the middle of the machine was, in fact, clear. When 

Mr. Huckabey turned on the saw machine, he immediately heard Mr. Cooper shout 

and he turned the machine off. Mr. Cooper had been in the middle of the saw 

machine when Mr. Huckabey turned it on. The blade cut Mr. Cooper’s boot but did 

not physically injure him. 

James Glennie, the plant manager, approached the saw crew to determine what 

had happened. Mr. Glennie asked Mr. Lister if he had walked around the saw 

machine to ensure it was safe to turn on the saw before yelling “clear.” Mr. Lister 

responded, “I guess not.” He told Mr. Glennie that when he yelled “all clear” he was 

referring only to the back of the saw area. 

The parties disagree as to what happened next. According to Mr. Lister, 

Mr. Glennie initially said, “That’s a safety violation,” and “I’m going to have to fire 

you both.” When Mr. Huckabey responded that he could not be fired because he had 

a family to support, Mr. Glennie told Mr. Huckabey to stay and they would talk in 
4 

Mr. Glennie’s office. But when Mr. Lister told Mr. Glennie that he also had a family 

to support, Mr. Glennie maintained that Mr. Lister was fired and encouraged him to 

leave. 

According to Western, Mr. Glennie told Mr. Lister to clock out and leave the 

premises. Mr. Huckabey then requested to speak with Mr. Glennie in his office. 

Mr. Huckabey explained to Mr. Glennie that he had followed the safety protocol by 

relying on Mr. Lister’s statement that the saw machine was clear. Mr. Glennie 

confirmed with another worker, who had been working nearby, that Mr. Lister gave 

the “all clear” before Mr. Huckabey turned the saw on. Having confirmed that 

Mr. Lister was the only worker who violated the safety protocol, Mr. Glennie 

instructed Manpower to end Mr. Lister’s temporary assignment with Western. 

Mr. Glennie did not request that Mr. Lister’s employment with Manpower be 

terminated. 

C. Mr. Lister’s Pro Se Federal Action

Mr. Lister filed this pro se action against Western. The district court construed 

his amended complaint as alleging a claim of race discrimination in violation of 

§ 1981. Mr. Lister is African American. Mr. Huckabey is white. 

1. Mr. Lister’s Motion to Compel Discovery

Mr. Lister moved to compel discovery from Western. As relevant to his 

appeal, he sought disclosure of the shift leads and supervisors at Western’s facility. 

Western responded that it did not maintain any relevant records. A magistrate judge 

denied Mr. Lister’s motion to compel. While acknowledging it would have been 
5 

reasonable for Western to have kept such records, the magistrate judge accepted 

Western’s representation that it did not. Mr. Lister did not serve and file objections 

to the magistrate judge’s order within fourteen days after service. See

Fed. R. Civ. P. 72(a). 

2. The District Court’s Summary Judgment Ruling 

Both parties moved for summary judgment. The district court granted 

Western’s motion and denied Mr. Lister’s because he did not satisfy his burden to 

show that Western’s proffered non-discriminatory reason for terminating his 

employment—Mr. Lister’s violation of the safety protocol—was a pretext for race 

discrimination.2

 See Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1111 (10th Cir. 

2005) (“Pretext exists when an employer does not honestly represent its reasons for 

terminating an employee.”). 

The district court discerned two pretext arguments from Mr. Lister’s filings: 

(1) Western’s stated reason for his termination was false, and (2) Western treated 

Mr. Lister and Mr. Huckabey differently even though they both violated the safety 

protocol. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167-68 

(10th Cir. 2007). The court first held that Mr. Lister did not show that Western’s 

reason was factually false because Mr. Lister admitted that he failed to walk around 

and visibly inspect the saw machine before yelling “all clear.” 

2

 The district court did not reach Western’s alternative argument that 

Manpower, rather than Western, was Mr. Lister’s employer. We likewise decline to 

address this issue. 
6 

Second, the court held that Mr. Lister did not demonstrate disparate treatment 

based on Western terminating him but not Mr. Huckabey. Mr. Lister contended that 

Mr. Huckabey was equally responsible for the safety protocol violation because he 

failed to observe Mr. Cooper near the saw blade before turning on the saw machine.3

 

But the court held the evidence showed that Mr. Huckabey followed the safety 

protocol because, as the saw operator, he could not see the saw blade area from his 

position at the control panel and had to rely on the “all clear” announcement before 

turning on the machine. Mr. Lister and Mr. Huckabey thus had different 

responsibilities under the safety protocol: Mr. Lister was obligated to visually 

inspect the saw machine to ensure no one was in harm’s way before confirming “all 

clear,” and Mr. Huckabey was obligated to receive an “all clear” confirmation before 

turning on the saw machine. The court held the evidence showed that Mr. Huckabey 

followed the safety protocol, while Mr. Lister did not. Western’s decision not to 

terminate Mr. Huckabey was therefore not evidence of pretext. 

II. DISCUSSION

 On appeal, Mr. Lister challenges the magistrate judge’s denial of his motion to 

compel discovery, and he contends the district court erred in granting summary 

judgment in favor of Western. We construe Mr. Lister’s pro se appeal arguments 

liberally. See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). But we do 

3

 Mr. Lister attempted to submit evidence that the saw operator was required to 

observe the area before turning on the saw machine, but the district court excluded 

that evidence as inadmissible under the local court rules. 
7 

not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); 

Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (stating the court 

“will not craft a party’s arguments for him”). 

A. Denial of Motion to Compel Discovery

 We review the magistrate judge’s ruling on Mr. Lister’s motion to compel 

discovery for an abuse of discretion. See King v. Fleming, 899 F.3d 1140, 1147 

(10th Cir. 2018). Western contends that Mr. Lister did not preserve this issue for 

appeal because he failed to file any objection to the magistrate judge’s ruling. Rule 

72(a) provides for the filing of objections to a magistrate judge’s order on a nondispositive issue: 

A party may serve and file objections to the order within 14 

days after being served with a copy. A party may not assign 

as error a defect in the order not timely objected to. The 

district judge in the case must consider timely objections and 

modify or set aside any part of the order that is clearly 

erroneous or is contrary to law. 

Fed. R. Civ. P. 72(a). We recently clarified that a failure to object under Rule 72(a) 

does not divest this court of jurisdiction to review a magistrate judge’s 

non-dispositive order, holding instead that our firm waiver rule applies. See Sinclair 

Wyo. Refin. Co. v. A & B Builders, Ltd., 989 F.3d 747, 781 (10th Cir. 2021). “Under 

the firm waiver rule, a party who fails to make a timely objection to the magistrate 

judge’s ruling waives appellate review of both factual and legal questions.” Id. at 

781 n.23 (brackets and quotations omitted). Mr. Lister did not file objections. 
8 

 We have recognized an exception to the firm waiver rule for dispositive 

magistrate judge orders: 

We . . . have declined to apply the waiver rule to a pro se 

litigant’s failure to object when the magistrate[] [judge’s] 

order does not apprise the pro se litigant of the consequences 

of a failure to object . . . i.e. waiver of the right to appeal from 

a judgment of the district court based upon the [ruling] of the 

magistrate [judge]. 

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991) (requiring magistrate 

judges “to inform a pro se litigant not only of the time period for filing objections, 

but also of the consequences of a failure to object”). In her order denying 

Mr. Lister’s motion to compel, the magistrate judge did not include language 

regarding the timeframe for filing objections and the consequences of failing to do 

so. See R. at 233-35. We need not decide, however, whether to apply our firm 

waiver rule here because Mr. Lister has waived his right to appellate review of the 

magistrate judge’s ruling on his motion to compel for a different reason. 

 Mr. Lister contends, without further elaboration, that the magistrate judge 

erred by not ordering Western to produce evidence of shift leads and supervisors. 

See Aplt. Opening Br. at 3. This perfunctory contention of error—which fails to 

provide any basis for challenging the district court’s ruling that Western did not 

retain such records—is insufficient to invoke our review. See Murrell v. Shalala, 

43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (reiterating the “settled appellate rule that 

issues adverted to in a perfunctory manner, unaccompanied by some effort at 

developed argumentation, are deemed waived” (quotations omitted)); Perry, 199 F.3d 
9 

at 1141 n.13 (declining to address an argument “not adequately developed”); see also

Fed. R. App. P. 28(a)(8)(A) (requiring an appellant’s argument to include his 

“contentions and the reasons for them, with citations to the authorities and parts of 

the record on which the appellant relies”).4

 

B. Summary Judgment for Western

 “We review the district court’s grant of summary judgment de novo.” Young 

v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). “The court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). 

 Because Mr. Lister did not produce direct evidence of discrimination, the 

district court applied the McDonnell-Douglas burden-shifting framework to his 

§ 1981 claim. See Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 

2015) (assessing § 1981 claim under the McDonnell-Douglas framework). Under 

that framework, Mr. Lister carried the initial burden of establishing a prima facie 

case of racial discrimination, after which the burden shifted to Western to articulate a 

4

 In his reply brief, Mr. Lister makes an assertion about Western’s ability to 

“remember” the identities of leads and supervisors. Aplt. Reply Br. at 2. We do not 

address arguments raised for the first time in a reply brief. See Stump v. Gates, 

211 F.3d 527, 533 (10th Cir. 2000). 

Western argues Mr. Lister did not preserve this issue for appeal because he 

failed to call out the magistrate judge’s order in his notice of appeal. But “a notice of 

appeal designating the final judgment necessarily confers jurisdiction over earlier 

interlocutory orders that merge into the final judgment.” AdvantEdge Bus. Grp. v. 

Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236-37 (10th Cir. 2009). 
10 

legitimate, non-discriminatory reason for his termination. See Young, 468 F.3d at 

1249. We assume for purposes of our analysis that Mr. Lister satisfied his prima 

facie burden, and he does not contend that Western failed to satisfy its responsive 

burden to state its reason for the termination. The only issue is whether Mr. Lister 

demonstrated a genuine dispute as to whether Western’s reason for terminating 

him—his violation of a safety protocol—was pretextual. See id. He did not. 

 “The relevant inquiry is not whether the employer’s proffered reasons were 

wise, fair or correct, but whether it honestly believed those reasons and acted in good 

faith upon those beliefs.” Rivera v. City & Cnty. of Denver, 365 F.3d 912, 924-25 

(10th Cir. 2004) (brackets and quotations omitted). “The reason for this rule is plain: 

our role is to prevent intentional discriminatory hiring practices, not to act as a ‘super 

personnel department,’ second guessing employers’ honestly held (even if erroneous) 

business judgments.” Young, 468 F.3d at 1250. 

 Mr. Lister argues he demonstrated pretext. He asserts that Western failed to 

produce signed documentation of his training on the safety protocol. But he does not 

dispute that he was trained on it. He repeats his contention that he intended his “all 

clear” confirmation to pertain only to the portion of the saw machine where he was 

located, and he argues that Mr. Huckabey could and should have been able to see that 

Mr. Cooper remained near the saw blade. Finally, he references an OSHA 

investigation at Western after his termination, contending the incident leading to his 

termination would not have happened if an additional safety measure had been in 

place. 
11 

 Mr. Lister does not explain how any of these averments shows that Western 

did not honestly believe he violated Western’s safety protocol by failing to walk 

around the saw machine to ensure that the saw area was free of debris and workers 

before giving an “all clear” signal. He therefore has not demonstrated that the 

district court erred in holding he failed to satisfy his burden to show Western’s stated 

reason for terminating him was pretextual. 

III. CONCLUSION 

 We affirm the district court’s judgment. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge