FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     July 18, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT




    JOHNNIE ROGERS,

                Plaintiff-Appellant,

    v.                                                   No. 07-5176
                                             (D.C. No. 4:06-CV-00313-CVE-PJC)
    FEDERAL EXPRESS                                      (N.D. Okla.)
    CORPORATION, Originally sued
    as Fedex Express,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



         Johnnie Rogers appeals from the district court’s decision granting summary

judgment in favor of Federal Express Corporation (FedEx) on his claims for

religious discrimination under Title VII of the Civil Rights Act of 1964 and racial




*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
discrimination under Title VII and 42 U.S.C. § 1981. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

                                     Background

      Johnnie Rogers is African-American and a member of the RHEMA church.

He began working as a courier for FedEx in 1994. He was promoted to an

operations manager in 2000. In January 2005, he was terminated by his senior

manager, Dennis Schrieber, pursuant to FedEx’s disciplinary policy after he

received three performance reminders in a twelve-month period. Mr. Rogers

contested his termination through FedEx’s Guaranteed Fair Treatment Procedure

(GFTP). At the first level of GFTP review, the managing director for the Dallas

Metro District found “extensive documentation of [Mr. Rogers’s] problems with

failure to provide customer service” and he noted that Mr. Rogers failed to correct

his performance deficiencies after numerous warnings. See Aplee. Supp. App. at

279. After three levels of GFTP review, the decision to terminate Mr. Rogers’s

employment was upheld. During the GFTP process, Mr. Rogers did not allege

that Mr. Schrieber terminated him for any discriminatory reasons.

      On August 2, 2005, Mr. Rogers filed a charge with the Oklahoma Human

Rights Commission alleging that FedEx terminated his employment based on

racial and religious discrimination. The charge was investigated by the Equal

Employment Opportunity Commission (EEOC) and the charge was ultimately

dismissed. In the EEOC’s preliminary decision letter, the investigator stated that

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the evidence showed that Mr. Rogers was terminated as a “result of [Mr. Rogers]

not performing [his] job to [FedEx’s] expectations . . . after counseling to

improve [Mr. Rogers’s] performance failed.” 

Mr. Rogers then filed a

complaint against FedEx in federal district court.

      The district court concluded that FedEx had articulated a legitimate,

non-discriminatory reason for terminating Mr. Rogers’s employment, and that

Mr. Rogers had failed to show that FedEx’s reason was a pretext for

discrimination. The district court noted that the evidence showed that Mr. Rogers

was “repeatedly disciplined by all of his senior managers throughout his

employment at FedEx, and that he had come close to receiving three deficiencies

in 12 months at least once before prior to his termination on January 28, 2005.”

Aplt. App. at 152. The district court also determined that Mr. Rogers had not

demonstrated that similarly situated employees outside of his protected class were

treated differently.

                                     Discussion

      We review de novo the district court’s ruling granting summary judgment

in favor of FedEx. See Simms v. Okla. ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 

, 1326 (10th Cir. 1999). Summary

judgment is proper if there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. 

appeal, Mr. Rogers argues that: (1) the district court erred in ruling that

he had not shown that his co-workers, Michael Coon and Jeff Weiszbrod, were

similarly situated or engaged in conduct of comparable seriousness; 1 and (2) the

district court erred in ruling that the employment history of Dennis Schrieber was

irrelevant.

      We agree with Mr. Rogers that the district court made a factual error when

it was analyzing whether Mr. Rogers and Mr. Coon were similarly situated, but

we conclude that the error was not material. Mr. Rogers argued in response to

summary judgment that Mr. Coon committed a violation of comparable

seriousness but that he was not disciplined as harshly as Mr. Rogers. The district

court determined that:

      The conduct described in Coon’s December 8, 2004 documented
      counseling is distinguishable from the performance reminder
      [Mr. Rogers] received on February 27, 2004, because the employee’s
      motor vehicle record on file with FedEx did not actually show Coon
      that the employee’s license had been suspended. In contrast,
      [Mr. Rogers] could have found the necessary information in FedEx’s
      PRISM system when deciding how to discipline [his employee].
      Schreiber’s decision to issue a documented counseling to Coon on
      December 8, 2004 does not show that he treated [Mr. Rogers] more
      harshly than Coon, because FedEx has shown that the incidents are
      distinguishable.

Aplt. App. at 148-49.

1
      In response to summary judgment, Mr. Rogers had initially asserted that he
was disciplined more harshly than five similarly situated non-African-American
employees: Michael Beckmann, Jeff Weiszbrod, Tracie Darnell, Rick Gonzalez,
and Michael Coon. On appeal, he challenges only the district court’s ruling with
respect to Mr. Coon and Mr. Weiszbrod.

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      The district court’s description of Mr. Coon’s documented counseling is not

supported by the record because in September 2002 when Mr. Coon was

reviewing the motor vehicle record it did show that the employee’s license had

been suspended. 

But Mr. Coon was given a lesser discipline because

Mr. Schreiber was issuing the documented counseling in December 2004 and the

employee’s motor vehicle record had not shown any suspensions since the

September 2002 date. 

performance reminder was issued in

February 2004, six months after he failed to review his employee’s file in August

2003 and discover that the employee was eligible for termination. 

In

contrast, Mr. Schrieber was issuing discipline to Mr. Coon in December 2004 for

conduct that occurred more than two years earlier in September 2002. 2 We

therefore agree with the district court’s conclusion that the incidents are

distinguishable.

      Having reviewed the briefs, the record, and the relevant legal authority, we

conclude that the district court correctly decided this case because Mr. Rogers did

not present sufficient evidence from which a jury could conclude that the reason

for his termination was pretextual. Accordingly, for substantially the same




2
      We note that Mr. Schrieber did not become Mr. Coon’s and Mr. Rogers’s
senior manager until 2003.

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reasons stated by the district court in its Opinion and Order dated November 9,

2007, we AFFIRM the judgment of the district court.

                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




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