*This order and judgment is not binding precedent, except under the doctrines of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.

UNITED STATES COURT OF APPEALS

Filed 1/8/97

TENTH CIRCUIT

EZELL SWAIN,

Plaintiff - Appellant, No. 96-6218

v. W.D. Oklahoma

NORMAC FOODS, INC.,

Defendant - Appellee.

(D.C. No. CIV-94-393-B) 

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

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.
1

42 U.S.C. §§ 2000e - 2000e-17.

2

In fact, Swain’s failure to demonstrate pretext was the basis of the court’s

alternative holding. Swain does not address the district court’s primary holding, that he

failed to present a prima facie case.

-2-

Ezell Swain appeals the grant of an adverse summary judgment in his Title VII1

sex discrimination action against Normac Foods, Inc. (“Normac”). He alleges in his suit

that Normac discharged him because he is a male. On appeal, he contends that the district

court erred in determining that he failed to present facts showing that Normac’s stated

reason for terminating him -- violation of a work rule -- was pretextual.2 We affirm. 

The facts are fully set forth in the district court’s opinion, Appellant’s App. at 150-

52, and need not be repeated here except as relevant to our analysis. We review de novo

the district court’s grant of summary judgment. First Savings Bank, F.S.B. v. First Bank

System, Inc, 101 F.3d 645, 650 (10th Cir. 1996). Summary judgment is proper if “there is

no genuine issue as to any material fact and . . . the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). “[A] material fact is one which might affect

the outcome of the dispute under the applicable law.” Ulissey v. Shvartsman, 61 F.3d

805, 808 (10th Cir. 1995). 

Typically, a prima facie case in a job termination situation requires a showing that

1) the plaintiff belongs to a protected class; 2) the plaintiff was terminated for violating a

work rule; and 3) similarly situated non-minority employees who violated rules of
3The district court noted that the Supreme Court has recently abrogated the final

factor in the context of age discrimination. “The fact that one person in the protected

class has lost out to another person in the protected class is thus irrelevant, so long as he

has lost out because of his age . . . . Because it lacks probative value, the fact that an

ADEA plaintiff was replaced by someone outside the protected class is not a proper

element of the McDonnell Douglas prima facie case.” O’Connor v. Consolidated Coin

Caterers Corp., 116 S. Ct. 1307, 1310 (1996). The rationale behind O’Connor’s holding,

that a 56-year-old who is replaced by a 40-year-old may be just as much a victim of age

discrimination as a 40-year-old who is replaced by a 39-year-old, probably does not apply

to claims of sex discrimination; but we need not address that issue here.

-3-

comparable seriousness were treated differently.3

 EEOC v. Flasher Co., 986 F.2d 1312,

1316 (10th Cir. 1992). However, because Swain is male, he belongs to an historically

favored group. Therefore, as the district court correctly noted, the typical prima facie

case is adjusted for the specific context of reverse discrimination. Sanchez v. Philip

Morris Inc., 992 F.2d 244, 248 (10th Cir. 1993). Instead of showing membership in a

protected class, Swain must establish background circumstances which support an

inference that Normac is an unusual employer who discriminates against the majority. Id.

We agree with the district court that Swain made no showing of any such

background circumstances. We also note that Swain presented no facts tending to show

that any female employee accused of work rule violations received different or more

favorable treatment. Consequently, he failed to establish a prima facie case of reverse

discrimination. 

Inasmuch as Swain’s brief to us speaks solely to the district court’s alternative

holding, that he failed to demonstrate that Normac’s stated reasons for terminating him
4Swain’s brief purports to address the issue of pretext, although his main complaint

is that Normac failed to fairly investigate the sexual harassment charges against him. 

However, he cites no authority for his argument that Normac’s investigation was legally

insufficient, and he fails to identify any discriminatory motives. 

-4-

were pretextual, we also address that holding.4

 Assuming, arguendo, that Swain had

somehow presented a prima facie case, Normac properly rebutted it by producing

evidence that it had legitimate, nondiscriminatory reasons for its actions. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifted back to

Swain to show that Normac’s stated reasons were a pretext for the prohibited

discrimination. Id. at 804. 

The district court exhaustively detailed Swain’s failure to present any evidence of

pretext, noting that Swain’s argument was, essentially, irrelevant to a Title VII inquiry: 

Swain has failed to come forward with any specific facts of credible

evidence supporting his discrimination claims . . . . Swain has produced no

evidence that Normac did not believe the complaints of Ms. Coulter when

Normac terminated Swain . . . . Nor has Swain produced any evidence that

his termination was for any reason other than his repeated acts of sexual

harassment toward fellow employees and a violation of a final written

warning that any further such conduct would result in termination. 

Instead, in his response to Normac’s motion for summary judgment,

Swain focuses on whether or not the alleged harassment actually occurred

or if there was another reason, related to their past relationship, that Ms.

Coulter charged Swain with sexual harassment. However, the court finds

that the relevant inquiry is not whether the alleged sexual harassment

actually took place; rather the relevant inquiry is whether Normac’s

management believed at the time Swain was discharged that he had

continued to harass his co-employees and, as a result, had disregarded a

final written warning. See Waggoner v. City of Garland, 987 F.2d 1160,

1165 (5th Cir. 1993). . . . 
-5-

Swain has produced no evidence that Normac did not believe the

complaints of Ms. Coulter . . . . Nor has he produced any evidence that his

termination was for any reason other than his repeated acts of sexual

harassment toward fellow employees and a violation of a written warning

that any further such conduct would result in termination. Mr. Swain may

disagree with Normac’s decision but such disagreement does not constitute

pretext.

Appellant’s App. at 157-59. We agree.

Accordingly, for the reasons stated above, the district court’s order is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge