* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### JUL 1 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CORDELL ANDREW BELCHER, Plaintiff - Appellant,

v. BOEING COMMERCIAL AIRPLANE GROUP, Defendant - Appellee. No. 03-3319 (D.C. No. 00-CV-1445-KMH)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **

Plaintiff-Appellant Cordell Andrew Belcher, appeari ng pro se, appeals from the district court’s grant of summary judgment to D efendant-Appellee Boeing Commercial Airplane Group on Mr. Belcher’s claims o f race and disability discrimination and retaliation. Our jurisdiction a rises under 28 U.S.C. § 1291 and1 Mr. Belcher describes himself as a “job shopper.” Although he was

actually hired by Wyatt & Associates and assigned t o work at Boeing, Boeing concedes his status as an employee for purposes of his Title VII and ADA claims. - 2 - we affirm.

Background The following facts are uncontroverted, or where co ntroverted are viewed in the light most favorable to Mr. Belcher. Cordel l Belcher is an AfricanAmerican male, who has both vocational training andwork experience as a draftsman. In early 1996, Mr. Belcher was hired byBoeing Aircraft Group to work in that capacity on a company project to updat e the process of designing and listing aircraft parts. 1 R. Doc. 44 at 3. Throughout the course of his in itial assignment with Boeing, Mr. Belcher participated inafter-hours classes designed to teach employees to use CATIA (Computer Aided Thr ee-Dimensional Interactive Application), a computer-aided drafting tool. He completed the course, but still considered himself a novice on CA TIA after his training. Id. at 4. In early March 1997, Mr. Belcher was transferred to another working group within Boeing, where his immediate supervisor was A lan Robichaux. Although the source of the difficulty is unclear, it is unco ntroverted that the professional relationship between Mr. Belcher and Mr. Robichaux was strained. Mr. Belcher claims that Mr. Robichaux was biased against him be cause of his race, while Mr.- 3 -

Robichaux expressed concern with Mr. Belcher’s leve l of proficiency with the CATIA program. In any event, both believed that Mr . Belcher would function better in a different working environment. Id. at 4-5. On March 17, upon Mr. Belcher’s return to work afte r a brief illness, Mr. Robichaux approached him and discussed with him the prospect of a transfer to a working group that relied less heavily on CATIA. I n response, Mr. Belcher requested a meeting with Mr. Robichaux, Julie Acost a (the second-level manager of the group), and Lynn Galliart, the group personn el representative. The four met on March 18, 1997. Id. at 4. Following the meeting, Ms. Acosta agreed to transfe r Mr. Belcher to a different supervisor. Mr. Belcher then took a sch eduled vacation and returned to work on March 31, 1997. Upon returning to work, Mr . Belcher was transferred from Mr. Robichaux’s group, to a group headed by Larry Hebert. Because Mr. Hebert was absent from the office that day, Mr. Bel cher was introduced to Darrel Bishop, the lead engineer for the group. Mr. Bisho p gave Mr. Belcher a drafting assignment that Mr. Hebert had left for him, and in formed Mr. Belcher that he would have to take a CATIA evaluation in order to d etermine his level of proficiency with the program. To that end, Mr. Bis hop directed Mr. Belcher to Randy Hilliard, the Boeing employee in charge of ad ministering the CATIA test. Upon meeting with Mr. Hilliard and discussing the b asics of the test, Mr. Belcher- 4 -

informed Mr. Hilliard that he was not feeling well and asked if he could take the test at a later time. Mr. Hilliard agreed. Mr. Be lcher also told Mr. Hilliard that the test looked like a “Southern voting rights test ” (apparently because it would be evaluated subjectively) and that he felt this so rt of evaluation constituted harassment. Mr. Belcher then returned to his work area and, after a brief conversation with Mr. Bishop, left work without pro viding a reason or a return date. R. Doc. 63 at 6-7. Mr. Belcher did not beg in work on the assignment Mr. Hebert had left for him. Mr. Bishop later recounted these events to Mr. Hebe rt who decided to terminate Mr. Belcher’s employment with Boeing. Mr . Hebert had never met Mr. Belcher at the time he decided to terminate him. I d. at 8. Following his termination, Mr. Belcher filed a complaint with the Kansas Human Rights Commission (KHRC) alleging that Boeing discriminate d against him on the basis of race and age. R. Doc. 49 ex. 5. On December 17 , 1998, the KHRC issued a finding of no probable cause. The Equal Opportunity Employment Commission (EEOC) then reviewed the KHRC’s findings and issueda right to sue letter on February 26, 1999. Mr. Belcher filed the current s uit on October 31, 2000. Mr. Belcher’s theory is that Mr. Robichaux set him up to fail by scrutinizing his attendance and work, forcing him t o be slow and deliberate with every project undertaken. According to Mr. Belcher , the real reason for his- 5 -

termination was his statement to Lynn Galliart thatMr. Belcher was going to file a formal complaint against Mr. Robichaux. R. Doc. 55, Belcher Depo. at 272-74. He contends that Mr. Robichaux branded him as incompetent, which led Mr. Hebert to insist upon a CATIA evaluation. Id. at 261-62. The district court then held Mr. Belcher’s retaliat ion and disability discrimination claims had not been raised administr atively and were therefore unexhausted and barred. R. Doc. 63 at 10-11. It t hen ruled that Mr. Belcher could not establish a prima facie case of racial di scrimination given uncontroverted evidence that the decision-maker in this case, Mr. Hebert, was unaware that Mr. Belcher was African-American. In the alternative, the court held that Boeing set forth legitimate non-discrimin atory reasons for his termination, specifically, Mr. Hebert’s (1) refusal to take the CATIA test, (2) start the assignment, and (3) indicate when he would retu rn. The district court then concluded that Mr. Belcher had not made a showing t hat these reasons were pretextual. On appeal, Mr. Belcher argues that he can show eigh teen specific facts. The facts which he seeks to establish, however, mus t be material–facts that do not bear on Mr. Hebert’s decision to terminate him simp ly are not material and will not preclude summary judgment. See Jones v. Barnhart , 349 F.3d 1260, 1269 (10th Cir. 2003) (employee outspokenness of which d ecisionmaker was not aware- 6 -

cannot support causation requirement in a retaliati on claim); Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 531 (10th Cir. 1994) (comments by no ndecisionmakers are not material in showing the empl oyer’s action is discriminatory). He also argues that the district court erred in relying upon affidavits because they are hearsay. Finally, he c ontends that the district court overlooked evidence in the record that would have r ebutted Boeing’s defense.

Discussion We review a district court’s grant of summary judgm ent de novo, applying the same standard used by the district court. See Pacheco v. Whiting Farms, Inc. , 365 F.3d 1199, 1201 (10th Cir. 2004). An importantfunction of summary judgment is to eliminate factually unsupported clai ms. See Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). A nonmovant may notrest upon his pleadings, but “must set forth specific facts showi ng that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). Once the movan t has identified an element of a claim that the nonmovant cannot prove, all other fa ctual disputes concerning the claim become immaterial and summary judgment is pro perly entered. See Celotex , 477 U.S. at 322-23. The summary judgment materia l relied upon by the nonmovant is viewed in the light most favorable to him, but that material must contain significantly probative evidence that would allow a trier of fact to find in- 7 -

his favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 (1986). A. Title VII Race Discrimination Mr. Belcher claims he was terminated by Boeing beca use he is AfricanAmerican. Because Mr. Belcher lacks direct evidenc e, his claim is analyzed under the burden shifting test set forth in McDonne ll Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973). See Burns v. Bd. of County Comm’rs , 330 F.3d 1275, 1283 (10th Cir. 2003); Kendrick v. Penske Transp. S ervs., Inc. , 220 F.3d 1220, 1225-26 (10th Cir. 2000). Under the McDonnell Doug las test the plaintiff has the initial burden of making a prima facie showing of r acial discrimination. In the context of a contested termination, the prima facie showing can be made by demonstrating that (1) plaintiff belonged to a prot ected class; (2) that he was qualified for the job; (3) that despite his qualifi cations he was discharged; and (4) that the job was not eliminated after his discharge . Perry v. Woodward , 199 F.3d 1126, 1138 (10th Cir. 1999). Implicit in this form ulation is that the person responsible for the termination must be aware that the plaintiff belonged to a protected class. Geraci v. Moody-Tottrup, Int’l, I nc. , 82 F.3d 578, 581 (3d Cir. 1996). If the plaintiff succeeds in establishing aprima facie case of racial discrimination, the burden of production then shift s to the employer to articulate a legitimate, non-discriminatory reason for the termi nation decision. Once the employer does so, the burden returns to the plainti ff to demonstrate that the- 8 -

employer’s proffered reason is in fact a pretext fo r racial discrimination. McDonnell Douglas , 411 U.S. at 804. In granting summary judgment to Boeing on Mr. Belch er’s racial discrimination claim, the district court found thatthe uncontroverted facts establish that Mr. Hebert, the individual making th e termination decision, did not know that Mr. Belcher was African-American. R. Doc . 63 at 12. We agree with the district court that in the absenc e of any evidence tending to demonstrate that Mr. Hebert knew Mr. Belcher was African-American, Mr. Belcher cannot make out a prima facie claim of raci al discrimination. See Lubetsky v. Applied Card Sys. Inc. , 296 F.3d 1301, 1305-06 (11th Cir. 2002), cert. denied , 537 U.S. 1106 (2003); Geraci , 82 F.3d at 580; Robinson v. Adams , 847 F.2d 1315, 1316 (9th Cir. 1987). In the retali ation context, we have held consistently that an employee cannot establish caus ation as part of the prima facie case where the employer is unaware of the protected activity. Jones , 349 F.3d at 1269, Williams v. Rice , 983 F.2d 177, 181 (10th Cir. 1993). Similarly, t he inference of discrimination does not make sense whe n the decisionmaker is unaware of the employer’s membership in a protectedclass. It is uncontroverted that Mr. Belcher and Mr. Hebert had not met at the time of the termination. R. Doc. 55, Belcher Depo. at 147-48, 276. In moving for summary judgment, Boeing relied upon Mr. Hebert’s a ffidavit stating that Mr.2 In affidavits, both Mr. Hebert and Mr. Robichaux indicate that Mr.

Robichaux had no role in deciding whether Mr. Belch er’s CATIA skills should be evaluated or whether Mr. Belcher should be terminat ed. R. Doc. 49, Hebert Aff. at 1-2, ¶¶ 3, 4, 10, Robichaux Aff. at 3, ¶¶ 9-10. - 9 - Hebert was unaware that Mr. Belcher was African-Ame rican. R. Docs. 48 at 10, ¶ 44; 49 Hebert Aff. at 1-2, ¶ 9. In response, Mr. Belcher stated: Controverted. Mr. Hebert may have never met plaint iff, but he knew he was African American. Mr. Hebert’s actions were totally irresponsible and based upon total hearsay. Racismcan easily be inferred to explain such action. [Belcher depo.] R. Doc. 55 at 6-7, ¶ 44. We have reviewed Mr. Belc her’s deposition and find nothing that would provide support for Mr. Belcher’ s statement that Mr. Hebert knew that Mr. Belcher was African-American. Indeed , Mr. Belcher’s theory (unsupported by anything but his own speculation) i s that rather than reveal the racially motivated nature of the problems between h imself and Mr. Belcher, Mr. Robichaux passed along false concerns about Mr. Bel cher’s competency to Mr. Hebert which led to the CATIA test. R. Doc. 55, Be lcher Depo. at 267. 2 In these circumstances, summary judgment is entirely proper as Mr. Belcher would have the burden of proof at trial as to Mr. Hebert’s awa reness of Mr. Belcher’s race given the evidence to the contrary. Celotex , 477 U.S. at 322. Because we resolve the case based upon the lack of a prima facie case, it is unnecessary to consider the remainder of the McDonnell Douglas formulation. Mr. Belcher’s claim that the district court imprope rly considered affidavits- 10 -

submitted by Boeing in support of its motion for su mmary judgment is meritless. Rule 56(c) and (e) specifically provide for affidav its. Neither party is required to provide evidence in a form that would be admissible at trial in seeking summary judgment. Celotex , 477 U.S. at 324. B. Americans with Disabilities Act and Retaliatio n Claims The district court granted Boeing’s motion for summ ary judgment on Mr. Belcher’s claims of discrimination based on disabil ity, and retaliatory termination, on the basis that Mr. Belcher had failed to exhausthis administrative remedies. Tenth Circuit law concerning the exhaustion of admi nistrative remedies holds that “a plaintiff normally may not bring a Title VII act ion based upon claims that were not part of a timely-filed EEOC charge for which th e plaintiff has received a right-to-sue letter.” Simms v. Okla. ex rel. Dep’tof Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). The ADA expressly adopts Title VII’s administrative exhaustion requirements. See 42 U.S.C. § 12117(a). Mr. Belcher filed his initial administrative compla int with the KHRC and the charges were later reviewed by the EEOC. On th e KHRC form, Mr. Belcher marked the box for racial discrimination, and left the box for retaliation and disability discrimination blank. R. Doc. 63 at 9. A party’s failure to mark a box for a particular type of discrimination creates a p resumption that the complainant is not asserting claims under those theories. Gunn ell v. Utah Valley State Coll. ,- 11 -

152 F.3d 1253, 1260 (10th Cir. 1998). In the narrative portion of the complaint, Mr. Belcher wrote nothing to suggest retaliation ordisability discrimination. The district court correctly held that Mr. Belcher had presented no competent evidence to support his claim that he had exhausted his admi nistrative remedies with respect to retaliation and disability discriminatio n. AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge