UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ELVIS J. GRUBBS, 

 Plaintiff - Appellant, 

v. 

THE SALVATION ARMY, 

 Defendant - Appellee. 

No. 14-3273 

(D.C. No. 5:13-CV-04017-DDC-TJJ) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

Elvis Grubbs, proceeding pro se,1

 appeals from the district court’s grant of 

summary judgment in favor of his former employer, the Salvation Army. Exercising 

jurisdiction under 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. 

1

 We construe Grubbs’ pro se filings liberally. See Hall v. Bellmon, 935 F.2d 

1106, 1110 (10th Cir. 1991). 

FILED 

United States Court of Appeals

Tenth Circuit 

August 13, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

Grubbs, a Native American man in his mid-fifties, was employed by the 

Salvation Army as a thrift store clerk from November 2010 to January 2012. His 

duties as clerk included stocking, cleaning, and arranging merchandise, and other 

duties as assigned. Shortly after he was hired, Grubbs was trained to sort “bric-abrac,” a task that involves placing products into grocery carts at the back of the store 

and restocking items on store shelves. Initially, a white male employee who was 

younger than Grubbs was primarily responsible for bric-a-brac. After that employee 

was fired, one of Grubbs’ supervisors took over responsibility for bric-a-brac. 

Grubbs himself increasingly assisted with the bric-a-brac after that supervisor 

became pregnant. Eventually Grubbs spent approximately half his time at work 

sorting merchandise and the other half stocking merchandise. 

Uncontroverted evidence in the record shows that Grubbs was absent from 

work or was admonished for substandard work performance on several occasions. 

On June 27, 2011, Grubbs failed to report to work due to car problems and he was 

issued a warning. He was issued a second warning on July 29, 2011, for failing to 

carry out his work assignments in a timely manner. On November 16, 2011, a 

manager noted that Grubbs was absent from work and failed to notify anybody at the 

store that he would be absent. Grubbs also left work early several times in January 

2012. On January 12, 2012, Grubbs contacted his employer to report that he would 

arrive late to work because his transmission failed. A manager informed him that he 

would need to substantiate his excuse by providing a receipt for transmission work. 

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He never provided such a receipt. The next day, Grubbs failed to report to work. On 

January 14, when Grubbs returned to work, he was issued a third disciplinary 

warning for his absences and substandard performance. He was suspended, and later 

terminated. 

Grubbs then filed a complaint with the Equal Employment Opportunity 

Commission (“EEOC”) alleging that he was terminated on the basis of his gender, 

age, and ancestry. The EEOC was unable to conclude from its investigation that the 

Salvation Army violated the law and it issued Grubbs a right to sue letter. Grubbs 

subsequently filed suit in federal district court. The district court determined that 

Grubbs had failed to establish a prima facie case of unlawful discrimination and had 

not presented evidence of pretext. It accordingly granted summary judgment in favor 

of the Salvation Army. Grubbs timely appealed. 

II 

We review the grant of summary judgment de novo, applying the same legal 

standard used by the district court. Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 

2001). Summary judgment is appropriate only “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). “In our review, we examine the evidence and 

draw reasonable inferences therefrom in the light most favorable to the non-moving 

party.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1129 (10th Cir. 2003). 

Because Grubbs presents no direct evidence of illegal age, race, or gender 

discrimination, we evaluate his claim under the familiar burden-shifting framework 

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of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Garrett v. HewlettPackard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). This approach involves three 

steps: “(1) the plaintiff’s prima facie case of [unlawful] discrimination, (2) the 

defendant’s legitimate business justification, and (3) the plaintiff’s rebuttal showing 

of pretext and/or improper motivation.” Fallis v. Kerr-McGee Corp., 944 F.2d 743, 

744 (10th Cir. 1991). 

Even assuming that Grubbs established a prima facie case, we agree with the 

district court that he has not shown the Salvation Army’s reasons for termination 

were pretextual. A plaintiff may “establish pretext by showing such weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s 

proffered legitimate reasons for its action that a reasonable factfinder could rationally 

find them unworthy of credence and hence infer that the employer did not act for the 

asserted non-discriminatory reasons.” Santana v. City & Cnty. of Denver, 488 F.3d 

860, 864 (10th Cir. 2007) (quotation omitted). 

The uncontroverted evidence shows that Grubbs was admonished for repeated 

absences, tardiness, and failure to perform his work in a timely manner. Although 

Grubbs provides various excuses and explanations for his absences and he denies that 

his performance was deficient, he does not dispute that the absences occurred or that 

he was admonished for his performance. At most, Grubbs asserts a general dispute 

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concerning his job performance. It is well-settled that such a dispute, standing alone, 

does not establish pretext. Fallis, 944 F.2d at 747.2

 

III 

The judgment of the district court is AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 2

 Construed liberally, Grubbs’ appellate filings assert that various documents 

prepared by the Salvation Army violated his privacy rights; that the district court 

abused its discretion by forbidding Grubbs from directly contacting the Salvation 

Army or defense counsel after Grubbs allegedly engaged in harassing behavior; and 

that the district court ignored his “motion for review” of that requirement. Because 

Grubbs fails to offer any substantive argument to support these issues, we consider 

them waived. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th 

Cir. 2005). 

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