## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1097

___________ Morgan Enowmbitang, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Seagate Technology, Inc., * * Appellee. *

___________ Submitted: June 12, 1998 Filed: July 2, 1998

___________ Before BEAM, ROSS, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.

Mo rgan Enowmbitang, a black immigrant from Cameroon, was employed b y Seagate Technologies, Inc. (Seagate) in Minneapolis, M innesota from 1991 until 1994. After Seagate failed to promote him on five different occa sions, Enowmbitang resigned and brought this Title VII action against Seagate, alleging that Seagate refused t o promote him because of his rac e and national origin. Following discovery, the districtThe Honorable Richard H. Kyle, United States District Judge for the District of 1 Minnesota. -2- court granted summary judgment against Enowmbitang. We affirm. 1

I. Seag ate hired Enowmbitang as a machine operator in September 1991, shortly after he had rece ived a bachelor's degree from St. Cloud State University in industrial engineering, w ith a grade point average (GPA) of 2.25 on a 4-point scale. In January 1992, Seagatepromoted Enowmbitang to the position of engineering technician, with a wage of $8.92 per hour. Enowmbi tang subsequently received several pay and grade
ra ises, and was earning $12.29 per hour at the time of his resignation in Septembe r 1994. Whi le working at Seagate, Enowmbitang began a master's degree program i n eng ineering at St. Thomas University. Enowmbitang completed course work for hi s master's degree in 1993, and received his degree in 1997.

Wh ile employed by Seagate, Enowmbitang sought a promotion to industria l engineer, a position offering greater compensation and requiring greater responsibility than the position of engineering technic ian. Enowmbitang applied for the position five t imes, and each time Seagate selected a different candidate. The candidates selected instead of Enowmbitang had undergraduate GPAs that were superior to Enowmbit ang's, ranging from 3.23 to 3.8. Seagate contends that it based its decisions, in part, on the superior GPAs possessed by the successful candidates. Following his resignation from Seagate, Enowmbitang filed claims o f discriminationwith the Minnesota Department of Human Rights and the Equa l Employment Opportunity Commission, and subsequently filed this complaint with the d i strict court. In his complaint, Enowmbitang alleged that Seagate had violated Title VI I, 42 U.S.C. § 2000e-2(a)(1), and the Minnesota Human Rights Act, Minn. Stat. §-3-

363.03, Subd. 1(2)(c), by passing him over for promotions because of his race an d national origin, by failing to give him a computer to work on, and by giving him a n unfairly poor evaluation.

Followi ng discovery and upon motion by Seagate, the district court grante d par tial summary judgment against Enowmbitang on his failure to promote claim

. Subseq uently, the district court sua sponte granted summary judgment agains t En owmbitang on his remaining claims, concluding that he had failed to state a clai m upon which relief could be granted. Enowmbitang now appeals.

II.

Enowmbi tang first argues that the district court erred in granting summary judgment against him on his failure to promote claim. Reviewing the district court' s grant of summary judgment de novo, see Unigroup, Inc. v. O'Rourke Storage & Transfer Co. , 980 F.2d 1217, 1219 (8th Cir. 1992), this Court applies the shiftin g burden analysis of McDonnell Douglas Corp. v. Green , 411 U.S. 792, 800-06 (1973), to Enowmbitang's claim. Here, Enowmbitang has the burden of presenting a prim a facie case of discrimination, which creates a presumption of discrimination. Th e pre sumptionof discrimination is rebutted if Seagate presents a nondiscriminator y reason for not promoting Enowmbitang. Enowmbitang then has the burden o f presentin g evidence that Seagate's reasons were pretextual for discrimination. I f Enowmbitang cannot meet thi s burden, summary judgment for Seagate is proper. See Ryther v. KARE 11 , 108 F.3d 832, 836 (8th Cir.) (en ban c) (describing shifting burden analysis), cert. denied , 117 S. Ct. 2510 (1997). Seag ate has conceded that Enowmbitang presented prima facie cases o f discrimi nation based on race and national origin: Enowmbitang is a member o f protected clas ses, he applied for the promotions, he was qualified for the promotions, and the promotions went to persons who are not members of protected classes. SeeEnowmbitang has submitted to this Court a numb er of documents, including his 2 own deposit ion, which were never presented to the district court. Relying on thi s Court' s precedent, Seagate has moved to strike these documents from the Appellant's Appendix. See Rivers-Frison v. Southeast Mo. Community Treatment Ctr. , 133 F.3d 616, 619 n.2 (8th Cir. 1998). Because t hese materials were available to Enowmbitang but were not submitted to the district court, we decline t o consider them on appeal, and we grant Seagate's motion to strike. -4- Lidge-Myrtil v. Deere & Co. , 49 F.3d 1308, 1310 (8 th Cir. 1995) (describing elements of a prima facie case). We conclude that Seagate has also met its burden of presenting a nondiscriminatory reason for its hiring decisions--the other can didates each had better GPAs than Enowmbitang. We also conclude that Enowmbitang has failed to meet his burden of presenting evidence showing that Seagate's reason is pretextual. Seagate personnel hav e explained that the industrial engineer position has a GPA requirement. See Aff. of Richar d Berger ¶ 2 ("In order to be a candidate for an engineering position at Seagate' s Recording Head Oper ations, all applicants are screened against a grade point average ('GPA') of 3.0 or bet

ter on a 4.0 scale."), reprinted in Appellee's App. at 108; see also Dep. of Michael Usrey at 47-48 ("My understanding of Seagate's requirement is a n engineering degree from an ABET accredited institution with a GPA of 3. 3."), reprinted in Appellant's App. at 121-22. It is undisputed that each of the fi ve individuals selected to be industrial engineers instead of Enowmbitang had an undergraduate GPA over 3.2, whic h is significantly superior to Enowmbitang's undergraduate GPA of 2.25

. Enowmbitang p resented no evidence to the district court to support his bare assertion that GPA was unimportant to Seagate, and that the real reason that Enowmbitang was not promoted was because of his race or his national origi n. Accordingly, we conclude that the district court properly granted summary judgment on Enowmbitang's failure to promote claim. 2-5- III. Enowmbitang also contends that the district court erred in granting summar y ju dgment sua sponte on his remaining claims without giving him an opportunity t o respond. We disagree. A district court may properly grant summary judgment sua sponte and without prior notice "if the losing party has failed to state a claim upon which relief may b e granted." Coplin v. Fairfield Pub. Access Television Comm. , 111 F.3d 1395, 1407 (8th Cir. 1997). We review a dismissal for failure to state a claim de novo, viewing th e complaint in the light most favorable to the plaint iff. See Frey v. City of Herculaneum , 44 F.3d 667, 671 (8th Cir. 1995). A complaint shall be dismissed for failure to state a claim "only if it is clear that no r elief can be granted under any set of facts that could be proved consistent with the allegations." Id. (quotations omitted).

To b ring a cause of action under Title VII, a plaintiff must allege that he ha s suff ered adverse employment action. See Ledergerber v. Stangler , 122 F.3d 1142 , 1144 (8th Cir. 1997). Adverse employment action is that which materially alters the terms or conditio ns of the plaintiff's employment. Id. at 1144-45. Seagate's failure to provid e Enowmbitang a computer does not rise above a "mere inconvenience" an d therefore does not constitute an adverse employment action, id. at 1144 (quotation s omitted); whether Seagate wishes to give its technicians specific pieces of equipment is a busi ness decision that is not susceptible to judicial oversight. Similarly, whil e Enowmbitang has alleged that he received an unfairly poor evaluation from Seagate , he has not alleged that Seagate used the poor evaluation to Enowmbitang's detriment in any way. Because the poor evaluation did not change the terms or conditions o f Enowmbitang's employment, it was not an adverse employme nt action, and is therefore not actionable under Title VII. Finally, Enowmbitang argue s on appeal that he "was consistently paid less than-6-

similarly situated non-foreign born Caucasian employees." A ppellant's Br. at 27. This argu ment was not raised in Enowmbitang's complaint, was not considered by th e di strict court, and will not be considered for the first time on appeal. See Vo n Kerssenbrock-Praschma v. Saunders , 121 F.3d 373, 375 (8th Cir. 1997). Accordingly, we affirm the district court's grant of summary judgment against Enowmbitang. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.