* This order and judgment is not binding precedent, e xcept under the

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

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

### JUL 30 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LUIS GEDO,

Plaintiff-Appellant and Cross-Appellee,

v. COBE LABORATORIES, INC., a Colorado corporation and division of Gambro, A.B.,

Defendant-Appellee and Cross-Appellant. Nos. 96-1237 & 96-1266 (D.C. No. 94-M-2862) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.-2-

Plaintiff Luis Gedo appeals the district court’s gr ant of summary judgment to defendant Cobe Laboratories, Inc., on his compla int alleging discriminatory discharge in violation of Title VII of the Civil Ri ghts Act of 1964, 42 U.S.C. §§ 2000e-1 to 17, and 42 U.S.C. § 1981. Defendant cross-appeals the district court’s denial of its request for an award of attorney fees pursuant to 42 U.S.C. § 2000e-5(k). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. Background Plaintiff, a naturalized United States citizen orig inally from Uruguay, worked for defendant for approximately ten years be fore his termination on April 21, 1993. Plaintiff alleged that after defen dant hired Thomas Fletcher as an electrician in plaintiff’s work unit in 1987, he experienced numerous incidents of ethnic harassment involving Mr. Fletcher and a numb er of other nonminority workers. In September 1992, in response to persona l conflicts within plaintiff’s work unit, Dennis Hiiva, plaintiff’s supervisor, an d several people from defendant’s human resources department met with the workers in an attempt to ease tension. As a result of this meeting, the employees in the u nit were instructed to remove all offensive signs and posters from the work area. See Appellant’s App., Declaration of Dennis Hiiva at 151. Apparently pla intiff left work after the meeting without removing two of his posters. See id. at 99, 101. Mr. Fletcher-3-

removed plaintiff’s remaining posters, leaving plai ntiff a voice mail message informing him of the removal. When plaintiff learn ed that Mr. Fletcher had removed the posters, he left Mr. Fletcher two voice mail messages which were perceived by management as being threatening in con tent and tone. See id. at 151, 157. As a result of this incident, Mr. Fletcher received a two-day suspension based on uncertainty as to his motive for removing the posters, and plaintiff received a five-day suspension based on the threate ning tone of his messages to Mr. Fletcher. Both men were placed on probation fo r one year with a warning that “[a]ny further occurances (sic) will result intermination.” Id. at 154-55,
159-60. On April 8, 1993, while he was still on probation, plaintiff engaged in aggressive behavior and the use of inappropriate language during an argument with Mr. Hiiva. This was the second such incident in a short period of time. After the last incident, Mr. Hiiva met with personn el from human resources regarding plaintiff’s behavior and, following an in vestigation, the decision was made to terminate plaintiff as of April 21, 1993. In filing this action, plaintiff alleged that Mr. F letcher engaged in behavior equally as offensive as that of plaintiff, but was not similarly disciplined. He asserted that this disparate treatment proves that defendant’s stated reason for-4-

terminating him was pretextual, and the real motivation for his termination stemmed from ethnic discrimination. For the follow ing reasons, we agree with the district court that plaintiff’s allegations do not establish a prima facie case of discriminatory discharge.

II. Discussion A. Standard of Review “We review de novo the grant of summary judgment an d apply the same legal standards as the district court under Rule 56 .” Aramburu v. The Boeing Co. , 112 F.3d 1398, 1402 (10th Cir. 1997). Summary judg ment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of of law.” Fed. R. Civ. P. 56(c). B. Title VII Claims Under the three-step burden shifting format set forth in McDonnell Douglas Corp, v. Green , 411 U.S. 792 (1973), applicable to claims of disp arate treatment, the plaintiff has the initial burden of establishin g a prima facie case of discrimination. See Elmore v. Capstan, Inc. , 58 F.3d 525, 529 (10th Cir. 1995). In order to prove a prima facie case in a disparate treatment claim relating to discharge for violation of a work rule, plaintiff m ust show “‘(i) that [the plaintiff] belongs to a [protected class]; (ii) that he was di scharged for violating a work rule . . . ; and (iii) that similarly situated non-minor ity employees . . . were-5-

treated differently.’” EEOC v. Flasher Co. , 986 F.2d 1312, 1316 (10th Cir. 1992) (quoting McAlester v. United Air Lines, Inc. , 851 F.2d 1249, 1260 (10th Cir. 1988)). “Once plaintiff establishes a prima facie case, the burden of production shifts to defendant to articulate a facially nondis criminatory reason for its employment action.” Elmore , 58 F.3d at 530. At this stage, defendant is requ ired only to proffer a reason for the discharge that is not, on its face, proscribed by Title VII. See Flasher , 986 F.2d at 1316 n.4. Once defendant has met thi s burden, plaintiff assumes the burden of proving either that defendant acted with a discriminatory motive or that the reason articulate d was a pretext for discrimination. See Elmore , 58 F.3d at 530. In a disparate treatment case, t his burden can be met by showing that other similarly s ituated nonminority employees were treated differently for the same rules’ infrac tions. See id. Plaintiff contended that Mr. Fletcher, a nonminority employee, had also engaged in insubordinate behavior and the use of in appropriate language and gestures, but had not been similarly disciplined. In granting summary judgment to defendant, the district court concluded that Mr. Fl etcher was not similarly situated to plaintiff when he engaged in comparable conduct. Specifically, the court found that, because Mr. Fletcher’s comparable conduct occ urred prior to the institution-6-

of the period of probation, plaintiff had failed to establish a prima facie case of discriminatory discharge. See Appellant’s App. at 319-20. We agree. Plaintiff argues that the focus of the district cou rt’s analysis should have been on the “nature” of the infractions being compa red and not on whether the infractions occurred prior to the start of Mr. Flet cher’s probationary period. Even if we assume that Mr. Fletcher’s infractions of the rules were equally as offensive as those of plaintiff, see Flasher , 986 F.2d at 1316 (“[t]he infractions giving rise to the comparison need not involve exactly the same offense; they need only be of comparable seriousness”), we are still left with th e fact, correctly pointed out by the district court, that because of the timing, the two employees were not similarly situated at the respective times they engaged in th e offensive behavior. It is undisputed that Mr. Fletcher’s behavior, giving ris e to the comparison, occurred before the intervention of the supervisor and humanresources personnel, and more importantly, before the institution of the pro bationary period and warning regarding the consequences of future offensive behavior. See Flasher , 986 F.2d at 1320 (differences in treatment between different employees can be explained by the fact that “individualized circumstances surroun ding the infractions offered some mitigation for the infractions less severely p unished”). Although “‘[d]ifferential treatment not premised onrational business policy may in some instances support an inference of illeg al discriminatory intent,’” it-7-

may also adequately be explained, as here, by the f act that the discipline was given “‘at different times when the company’s attit udes toward certain infractions were different.’” David v. City & County of Denver , 101 F.3d 1344, 1359-60 (10th Cir. 1996) (quoting Flasher , 986 F.2d at 1320); see also Aramburu , 112 F.3d at 1404 (in determining whether employees are simil arly situated, court should “compare the relevant employment circumstances, suc h as work history and company policies, applicable to the plaintiff and t he intended comparable employees”). Therefore, we agree with the district court that pl aintiff fails to present evidence that defendant’s reasons for terminating p laintiff were a pretext for illegal discrimination simply because Mr. Fletcher, a nonminority, was not similarly disciplined for similar behavior prior to the institution of the probationary period. See Flasher , 986 F.2d at 1321 (“An inference of illegal discrimination based upon protected class character istics is not legally compelled by irrational or accidental disparate treatment between minority and non-minority employees.”). Moreover, in light of the record, we conclude that none of plaintiff’s evidence demonstrated that his terminat ion was due to any intentional discrimination based on his national origin. He pr esented no direct evidence of defendant’s discriminatory motive, or indirect evid ence which would call into1 With certain exceptions not pertinent here, in fede ral court, “[f]indings of

fact and conclusions of law are unnecessary on deci sions of motions.” Fed. R. Civ. P. 52(a). -8- question defendant’s motives. See Elmore , 58 F.3d at 530. Accordingly, we affirm the district court’s grant of summary judgme nt to defendant on this claim. C. Attorney Fees Defendant cross-appeals the district court’s denial of its request for attorney fees pursuant to 42 U.S.C. § 2000e-5(k). The district court denied this request without making specific findings. 1
A defendant in a Title VII action is entitled to an award of attorney fees only upon the court’s finding that plaintiff’s clai m was “frivolous, unreasonable, or groundless, or that the plaintiff continued to l itigate after it clearly became so.” Christianburg Garment Co. V. EEOC , 434 U.S. 412, 422 (1978). We review the district court’s denial of attorney fees for an abu se of discretion. See Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1 , 89 F.3d 720, 728 (10th Cir. 1996). Defendant argues that plaintiff brought his origina l complaint based on a theory of hostile work environment. When faced with defendant’s summary judgment motion based on the assertion that plainti ff’s claims against his coworkers were time barred, he filed his brief in opp osition, asserting a disparate treatment claim. Defendant asserts that, under eit her theory, plaintiff’s claims were frivolous and groundless.-9-

Here, the district court reached its summary judgme nt decision following full hearing. Thus the court was in the best posit ion to make a determination regarding the merit of plaintiff’s claims. Accordi ngly, given the stringent standards for an award of attorney fees to a defend ant in a Title VII action and the amount of deference afforded the district court in making attorney fee determinations, we find no error in the district co urt’s denial of defendant’s motion. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge