FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

MAY 12 2005 

PATRICK FISHER 

Clerk 

HARLEY R. LYONS, also known as 

H. Ray Lyons, 

Plaintiff - Appellant, 

V. 

RED ROOF INNS, INC., 

Defendant - Appellee. 

No. 04-1275 

(D.C. No. 03-D-9 l (CBS)) 

(D. Colo.) 

ORDER AND JUDGMENT* 

Before LUCERO, McKAY, and ANDERSON, 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)(2); 10th Cir. R. 34.l(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* This order and judgment is not binding precedent, except under the 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. 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. 

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Plaintiff-appellant Harley R. Lyons, proceeding pro se, appeals the district 

court's grant of summary judgment in favor of his former employer, defendantappellee Red Roof Inns, Inc. (RRI), on his claims that RRI engaged in reverse 

gender and racial discrimination in violation of Title VII of the Civil Rights Act 

of 1964. See 42 U.S.C. § 2000e-2(a)(l ). We exercise jurisdiction under 28 

U .S.C. § 1291 and affirm. 

Lyons is a white male. Lyons was employed by RRI from July 23, 2000 to 

January 8, 2001, working as a guest services representative and a night auditor at 

RRI's hotel #239 in Colorado Springs, Colorado. RRI terminated Lyons' 

employment on January 8, 2001 because he had allegedly violated RRI's payment 

and check acceptance policies on several occasions. See R., Doc. 24, Ex. C. 

Lyons claims that RRI terminated him "with intent to discriminate because of his 

race/color (Caucasian/\\lhite ), and his sex (male)." Id., Doc. 15 at 1. 

"In A1cDonnell Douglas Corp. v. Green, 411 U.S. 792 ... (1973), the 

Supreme Court established a three-part paradigm for evaluating Title VII 

disparate treatment claims." Notari v. Denver Water Dep 't, 971 F.2d 585, 588 

(10th Cir. 1992). 

A,fcDonnell Douglas first requires the aggrieved employee to 

establish a prima facie case of prohibited employment action. The 

burden of establishing a prima facie case by a preponderance of the 

evidence is not onerous. Furthermore, this burden is one of 

production, not persuasion; it can involve no credibility assessment. 

If the employee makes a prima facie showing, the burden shifts to the 

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defendant employer to state a legitimate, nondiscriminatory reason 

for its adverse employment action. If the employer meets this 

burden, then summary judgment is warranted unless the employee 

can show there is a genuine issue of material fact as to whether the 

proffered reasons are pretextual. 

Plotke v. White,_ F.3d _, 2005 WL 984363, at *5 (10th Cir. April 28, 2005) 

(quotations and citations omitted). 

As determined by the magistrate judge, "Lyons' allegation that he was 

subjected to disparate treatment because he is a white male is subject to a reverse 

discrimination analysis." R., Doc. 41 at 3. As a result, in evaluating Lyons' 

prima facie showing under the McDonnell Douglas paradigm, the magistrate 

judge was required to apply the standards that this court adopted in Notari. Under 

Notari, for a reverse discrimination claimant to establish a prima facie case of 

discrimination, the claimant must "establish background circumstances that 

support an inference that the defendant is one of those unusual employers who 

discriminates against the majority." Notari, 971 F.2d at 589. "Alternatively, a 

reverse discrimination plaintiff may satisfy the first prong of McDonnell Douglas 

by presenting 'indirect evidence sufficient to support a reasonable probability, 

that but for the plaintiff's status the challenged employment decision would have 

favored the plaintiff."' Stover v. Martinez, 3 82 F .3d 1064, 1076 (10th Cir. 2004) 

(quoting Notari, 971 F.2d at 590). 

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The magistrate judge concluded that "Lyons fail[ ed] to make ... a prima 

facie case because there is insufficient evidence that: (I) RRI is one of those 

unusual employers who discriminates against white males; or (2) if Lyons were 

not a white male, RRI would not have terminated him from his job. " 1 R., Doc. 41 

at 5. The magistrate judge therefore recommended to the district judge that RRI's 

motion for summary judgment be granted. The district judge adopted the 

magistrate judge's recommendation and entered judgment in favor of RRI. 

"We review the grant of summary judgment de novo applying the same 

standard as the district court embodied in Rule 56( c )." Adler v. Wal-Jvf art Stores, 

Inc., 144 F.3d 664, 670 (10th Cir. 1998). Under Rule 56(c), 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). "In 

applying this standard, we view the factual record and draw all reasonable 

inferences therefrom most favorably to the nonmovant." Adler, 144 F.3d at 670. 

\\'c also construe Lyons' pro se pleadings liberally. See Diaz v. Paul J. Kennedy 

/.a11· Firm, 289 F.3d 671, 674 (10th Cir. 2002). Nonetheless, Lyons must set forth 

The magistrate judge also concluded that, even if Lyons had made out a 

prima facie case of reverse discrimination, RRI was still entitled to summary 

judgment because Lyons "failed to demonstrate that RRI's articulated reasons for 

terminating him are pretextual or unworthy of belief." R., Doc. 41 at 12. We do 

not need to address this aspect of the magistrate judge's analysis, however, as we 

agree with the magistrate judge that Lyons failed to make out a prima facie case 

of reverse discrimination. 

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sufficient facts to support his claims, id., and "[ c ]onclusory allegations that are 

unsubstantiated do not create an issue of fact and are insufficient to oppose 

summary judgment," Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th 

Cir. 2003) (quotation omitted). 

Having conducted the required de novo review, we conclude that Lyons 

failed to put forth sufficient evidence to establish a prima facie case of reverse 

discrimination. First, for substantially the same reasons set forth in the magistrate 

judge's recommendation, we conclude that Lyons failed to put forth sufficient 

evidence to establish that RRI is one of those unusual employers who 

discriminates against white males. See R., Doc. 41 at 5-6. 

Second, we also agree with the magistrate judge that Lyons failed to put 

forth sufficient evidence to establish that, but for his status as a white male, RRI 

would not have terminated his employment. Specifically, we agree with the 

following analysis of the magistrate judge: 

[T]he evidence indicates that Lyons was terminated ... for 

repeated failure to follow RRI payment policy procedures and check 

acceptance policies .... 

. . . Lyons has not presented evidence that similarly situated 

minority or female employees were treated any differently than 

him .... 

There is no evidence that other RRI employees were similarly 

situated to Lyons regarding their job performance. Lyons contends 

that he was disciplined more harshly than a white female GSR, 

Ashlee Stroup, for the same conduct. However, unlike Ms. Stroup, 

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Lyons repeatedly accepted personal checks from guests who did not 

have RediCards, causing financial loss to RRI. Ms. Stroup accepted 

one government voucher on or about December 11, 2000. Ms. Stroup 

was verbally counseled about accepting the government voucher. 

Lyons complains that Ms. Stroup was not disciplined for 

accepting a "Social Services check" on or about January 4, 2001. 

Acceptance of this government check did not violate RRI' s policies. 

There is no evidence that Ms. Stroup committed any more than a 

single violation of RRI's payment policies. Lyons has not presented 

any evidence that Ms. Stroup accepted the same kind of checks that 

he accepted. Lyons has not presented any evidence that Ms. Stroup 

or any other employee accepted personal checks from guests who did 

not have RediCards. The evidence shows that Lyons accepted at 

least three personal checks from guests without noting a RediCard 

number. 

Id. at 7-9 (quotation, citations, and footnote omitted). 2 We also reject Lyons' 

claim that RRI discriminated against him by failing to adequately train him, as we 

agree with the magistrate judge that "Lyons has not presented any evidence that 

similarly situated females or minority employees were provided more training 

than he was provided." Id. at 9. 

In his opening brief, Lyons claims that he submitted documentation to the 

district court showing that "nine other [RRI] employees on thirty separate 

occasions in the year 2000 performed their jobs in the same manner as Lyons did 

of accepting a personal check from a Non-RediCard member as form of payment 

2 "A RediCard is a preferred customer program which entitles a guest [at 

RRI] to special privileges, including the ability to write a personal check." R., 

Doc. 24, Ex. E at 2, ,r 10. 

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for a hotel room." Aplt. Opening Br. at 2, 5. To support this allegation, Lyons 

refers to Exhibit 9 to the supplemental response brief that he filed in opposition to 

RRI's motion for summary judgment. Id. at 5; see also R., Doc. 33, Ex. 9. 

Exhibit 9 contains documents showing RRI customer payment information for the 

year 2000 for hotel #239, and it was produced to Lyons by RRI during discovery 

after the magistrate judge ordered RRI "to produce documents for the year 2000 

which are records showing those occasions where non-Redi-card members paid by 

personal check without prior approval or without submitting their check in 

advance." R., Doc. 30 at 2. 

Lyons is correct that Exhibit 9 appears to show that other RRI employees at 

hotel #239 accepted personal checks from customers in 2000. But the documents 

in Exhibit 9 do not conclusively show that the customers who paid with personal 

checks were not RediCard members. In fact, Lyons himself pointed out this 

deficiency to the magistrate judge at a discovery/status conference that was held 

shortly before the magistrate judge entered his recommendation on RRI's 

summary judgment motion. See R., Doc. 40 at 1-7. The magistrate judge 

dcdined to grant Lyons any relief with respect to the documents contained in 

Exhibit 9, however, id., Doc. 32 at 1-2, and Lyons never asked the district judge 

10 reconsider the magistrate judge's pretrial rulings concerning Exhibit 9. See 28 

U .S.C. § 636(b )( 1 )(A) (providing that a judge of the district court may reconsider 

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a magistrate judge's ruling on a nondispositive pretrial matter "where it has been 

shown that the magistrate judge's order is clearly erroneous or contrary to law"); 

Fed. R. Civ. P. 72(a) (same). Likewise, Lyons failed to assert any objection 

concerning Exhibit 9 when he objected to the magistrate judge's recommendation 

on RRI's motion for summary judgment. 3 R., Doc. 42. Consequently, Lyons has 

waived any objection that he has to the documents contained in Exhibit 9, and the 

documents cannot be used to support his prima facie case since they are 

inconclusive on the RediCard issue. 4 

3 Instead, on the same day that he filed his supplemental response brief in 

opposition to RRI's summary judgment motion, Lyons filed a separate pleading in 

the district court entitled "Plaintiff's Reply to Defendant's Third Amended 

Responses to Plaintiff's Rule 34 F.R.C.P. Request for Production of Documents." 

R., Doc. 34. In this reply, Lyons stated that the documents in Exhibit 9 "do not 

indicate non Redi-Card members or the type of check the guest paid with." Id. at 

1. Lyons therefore requested that RRI "indicate in writing which guests in the 

documentation provided are non Redi-Card members paying by personal check." 

Id. RRI never responded to the latter request, however, and Lyons' request was 

not a proper discovery request under the Federal Rules of Civil Procedure. In 

addition, Lyons made his request after the district court's discovery cutoff had 

expired, and he never sought to extend the discovery cutoff for purposes of 

supplementing the documents in Exhibit 9. 

4 We also note that the affidavit of Lyons' wife, who was employed at the 

same RRI hotel where Lyons worked, is also deficient for purposes of providing 

evidence concerning the RediCard issue. In her affidavit, Ms. Lyons stated that 

"[ d]uring the year 2000, while working for Red Roof Inns, I accepted many 

checks as form of payment on a room. I took in personal checks and business 

checks." R., Doc. 29, Ex. 2 at 1, ,i 6. Ms. Lyons did not state that the checks 

were from non-RediCard members, however. 

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Finally, we conclude that the magistrate judge correctly determined that 

Lyons failed to put forth sufficient evidence to show that he was the victim of 

reverse racial discrimination because RRI hired Paul Taylor, an African-American 

male, to replace him. As summarized by the magistrate judge, 

The evidence in the record allows at most the inference that 

Mr. Taylor was hired because he needed a job and based on his 

acquaintance with [Lyons' supervisor], not because of intentional 

discrimination against Lyons because he is a white male. Viewed in 

the light most favorable to Lyons, the evidence shows no more than 

Lyons' personal belief that he was subjected to illegal discrimination 

because Taylor is black and he is white. 

R., Doc. 41 at 10 ( citation omitted). We further conclude that the magistrate 

judge correctly determined that Lyons failed to assert a state-law claim for 

wrongful termination in the proceedings before the district court. Id. at 12 n.2. 

We thus reject Lyons' claim that the district court erred because his "claim for 

wrongful termination was not addressed in the final judgment." Aplt. Opening 

Br. at 4. 

The judgment of the district court is AFFIRMED. Lyons' motion to file 

corrected opening and reply briefs is GRANTED. 

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Entered for the Court 

Stephen H. Anderson 

Circuit Judge 

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