United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1861

___________

Larry Muldrow, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Department of Defense, *

Robert M. Gates, Secretary, * [UNPUBLISHED]

*

Appellee, *

*

------------------------------------ *

*

Larry Muldrow, *

*

Appellant, *

*

v. *

*

United States of America, *

*

Appellee. *

___________

Submitted: October 6, 2009

Filed: October 7, 2009

___________

Before WOLLMAN, RILEY, and SMITH, Circuit Judges.

___________

PER CURIAM.
1

The Honorable William R. Wilson, United States District Judge for the Eastern

District of Arkansas.

-2-

Larry Muldrow appeals the district court’s1

 adverse grant of summary judgment

in his action claiming violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., based on his race (African American); the Rehabilitation Act,

29 U.S.C. § 794, based on his disability (depression and mood disorder); and the

Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. For the reasons that

follow, we affirm.

Muldrow, who worked at the Arkansas Army and Air Force Exchange Service

at the Little Rock Air Force Base as an Exchange Safety & Security Assistant, was

responsible for conducting surveillance at various facilities to detect acts of

shoplifting. On January 2, 2000, Muldrow went to the “shoppette” on the base to get

gas in his personal car, paid with his Deferred Payment Plan card, and left after

signing a receipt that included a few items that he purchased inside but did not include

the gas. He was terminated by supervisor Robert Pflager, who testified that Muldrow

was terminated because he got gas and did not pay for it, that Pflager does not try to

understand a person’s intent for doing something, and that his “simple rule” is to

terminate anyone who steals from him.

We find that the district court properly granted summary judgment for

defendants. See Jacob-Mua v. Veneman, 289 F.3d 517, 520 (8th Cir. 2002) (de novo

review). Muldrow did not establish a prima facie case as to either his Title VII or his

Rehabilitation Act claim, as he did not show that employees outside his protected

class were treated differently, or that he suffered an adverse action due to his

disability. See Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 868 (8th Cir.

2008) (prima facie case for Rehabilitation Act claim); Shanklin v. Fitzgerald, 397 F.3d

596, 602 (8th Cir. 2005) (prima facie case for Title VII claim). Although Muldrow

alleged that other employees were allowed to resign rather than being terminated after
-3-

committing theft, there is no indication that Muldrow would not have been allowed

to resign before his final termination. Further, Pflager provided a legitimate

nondiscriminatory reason for terminating Muldrow, see Gilbert v. Des Moines Area

Cmty. Coll., 495 F.3d 906, 916 (8th Cir. 2007) (federal courts do not review wisdom

or fairness of employer’s judgments except to the extent they involve intentional

discrimination), and Muldrow has not rebutted the reason. To the extent Muldrow is

claiming separate violations for actions not specifically related to his termination, they

do not amount to adverse employment actions. See Jackson v. UPS, Inc., 548 F.3d

1137, 1141-42 (8th Cir. 2008) (adverse employment action is one that produces

material employment disadvantage).

The district court also properly granted summary judgment on Muldrow’s

retaliation claim, as he did not raise the claim in his EEOC complaint, see Wedow v.

City of Kansas City, Mo., 442 F.3d 661, 672-73 (8th Cir. 2006) (retaliation claims are

not reasonably related to underlying discrimination claims for purposes of

exhaustion), and the court correctly found that Muldrow’s FTCA claim was timebarred, see T.L. ex rel. Ingram v. United States, 443 F.3d 956, 961 (8th Cir. 2006)

(FTCA claim must be filed with appropriate agency within 2 years after claim

accrues). The district court also did not err in denying Muldrow’s motion to set aside

the judgment, see Arnold v. Wood, 238 F.3d 992, 998 (8th Cir. 2001), or in directing

Muldrow to file an amended complaint. Finally, the district court did not abuse its

discretion in denying Muldrow’s recusal motions. See United States v. Ruff, 472 F.3d

1044, 1046 (8th Cir. 2007).

Accordingly, the judgment is affirmed. Muldrow’s motions to dismiss his

FTCA claim without prejudice and for oral argument are denied. 

______________________________