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No. 99-3397

(D.C. No. 99-CV-1458)

(D. Kan.)


Before TACHA, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff Carroll Cash appeals the district court's grant of summary judgment in favor of defendant Boeing Co. on his claims of race and gender discrimination. Because plaintiff has not demonstrated a prima facie case of reverse discrimination or that Boeing's reasons for his termination were pretextual, we affirm.

Plaintiff worked for Boeing in a supervisory capacity from 1984 until his termination on August 11, 1997. In August 1996, the personnel representative for plaintiff's work area received complaints about plaintiff from three of his subordinates. The employees reported several incidents of racial or sexual statements, gestures, and physical contact by plaintiff. During an ensuing investigation, two other employees reported vulgar and sexually explicit comments by plaintiff. Although plaintiff denied the allegations, he was suspended for three days, and was given a Corrective Action Memo which informed him that further incidents could result in more severe disciplinary action up to and including termination. Upon his return to work, plaintiff was moved to a new work area.

In approximately December 1996, and again in April 1997, employees in plaintiff's new work area made additional complaints about plaintiff's conduct. Although no disciplinary action was taken, plaintiff was counseled about the complaints and his behavior, and was moved to a new area. In August 1997, several other employees complained about plaintiff, alleging that he was making inappropriate comments and jokes, and that he had several instances of physical contact with female employees. After another investigation, Boeing terminated plaintiff for sexual harassment.

Plaintiff brought this employment discrimination action in federal district court pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to § 2000e-17, and 42 U.S.C. § 1981. He alleged his termination was discriminatory because the reports of sexual harassment were untrue and should not have been believed, and because nonwhite or female employees that had been accused of sexual harassment were not terminated. The district court held that plaintiff had not made out a prima facie case of discrimination, and that in any event he had not shown that Boeing's proffered reasons for the termination were pretextual.

We review the district court's grant of summary judgment de novo, applying the same legal standard as that applied by the district court. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1313 (10th Cir. 1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We examine the factual record and draw reasonable inferences therefrom in a light most favorable to the nonmoving party. See Bullington, 186 F.3d at 1313.

Ordinarily, a plaintiff claiming that his or her termination was motivated by gender or race discrimination belongs to an historically disfavored group. In such a case, we apply the burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), under which a rebuttable presumption of discrimination arises upon a showing that the plaintiff: (1) belongs to a protected class; (2) was qualified for the job; (3) was discharged despite being qualified; and (4) the job was not eliminated after the discharge. See Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999), cert. denied, 120 S. Ct. 1964 (2000). This is because when a protected employee who is qualified for his job is discharged and the job is not eliminated, it may be inferred that the adverse decision was made based on the employee's protected characteristics. See id. at 1139-40.

Here, however, plaintiff is a white male, which is an historically favored group, and therefore he "does not necessarily deserve the presumption of discrimination afforded to a member of an ostensibly disfavored minority class." Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir.1995). Because there is no reason to presume discrimination against historically favored litigants in the event of adverse employment actions, a different standard is applied. See Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252-53 (10th Cir. 1986). Under this modified standard, to raise a presumption of discrimination, a plaintiff must show background circumstances supporting the inference that the employer "is one of those unusual employers who discriminates against the majority." Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir. 1992). Here, plaintiff has not shown that Boeing is one of those unusual employers who discriminates against white employees and/or male employees.

Plaintiff attempts to make this showing by pointing to nonwhite and female employees who were charged with sexual harassment but were not terminated. We have reviewed the record regarding each of these employees. Although many of them committed conduct similar to that attributed to plaintiff, none of them had a continuing pattern of complaints after discipline and counseling similar to that of plaintiff. Most, like plaintiff, were given a Corrective Action Memo and were suspended for their first offense. As none of these employees was the subject of sexual harassment complaints on four separate occasions over a years' time, the fact that they were not terminated for their misconduct does not raise an inference that Boeing discriminates against white males in its disciplinary actions.

We also agree that plaintiff has not raised a triable issue as to pretext. Plaintiff's arguments focus on the veracity of the employees' complaints and the handling of the investigation. However, that is not the relevant inquiry. The relevant inquiry is whether Boeing reasonably believed the harassment and/or discrimination allegations and acted on them in good faith. See Kendrick v. Penske Transp., 220 F.3d 1220, 1230-32 (10th Cir. 2000) (holding evidence that plaintiff did not actually commit misconduct was insufficient to show pretext when it was undisputed that the employer made its decision based on its belief, after an investigation, that plaintiff did, in fact, commit the alleged acts); McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (holding that plaintiff failed to establish pretext for his discharge when the employer believed coworker's allegations of sexual misconduct after conducting an investigation, despite plaintiff's evidence that the allegations may have been false).

The judgment of the United States District Court for the District of Kansas is AFFIRMED.

Entered for the Court

David M. Ebel

Circuit Judge

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*. 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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