                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3007
                                   ___________

Leroy Hayes, Jr.,                       *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Questar Capital Corporation,            *
                                        * [UNPUBLISHED]
             Appellee.                  *
                                   ___________

                             Submitted: February 15, 2012
                                 Filed: February 24, 2012
                                 ___________

Before WOLLMAN, MELLOY, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

      Leroy Hayes, Jr. appeals the district court’s1 adverse grant of summary
judgment on his 42 U.S.C. § 1981 race-discrimination claim against Questar Capital
Corporation (Questar). Also pending is his motion to “throw out” the district court’s
summary judgment order. Upon careful de novo review, we conclude that summary
judgment was properly granted. See Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (standard of review).



      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
        First, to the extent Hayes’s claim was based on allegations of disparate
treatment, we agree with the district court that Questar proffered legitimate reasons
for its actions, and Hayes failed to create an inference of pretext. See Anderson v.
Durham D&M, L.L.C., 606 F.3d 513, 520-21 (8th Cir. 2010) (in analyzing
employment-discrimination claim under § 1981, in absence of direct evidence of
discrimination, court applies burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973); once plaintiff establishes prima facie case and
employer puts forth legitimate, nondiscriminatory reason for allegedly discriminatory
action, plaintiff must be able to show legitimate reason was pretext for
discrimination); Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003)
(insubordination and violation of company policy are legitimate reasons for
termination). Second, to the extent Hayes’s claim was based on allegations of
retaliation, we agree with the district court that Hayes could not show he had engaged
in protected activity. See Takele v. Mayo Clinic, 576 F.3d 834, 838-39 (8th Cir.
2009) (court applies same analysis to claims of retaliation under Title VII and § 1981;
to establish prima facie case, plaintiff must show, inter alia, he engaged in protected
activity). Finally, to the extent Hayes’s claim was based on allegations of a racially
hostile work environment, we conclude that there was no genuine controversy as to
whether Hayes was subjected to severe or pervasive discriminatory treatment. See
Anderson, 606 F.3d at 518 (court applies same standard to evaluate
hostile-work-environment claim under § 1981 as under Title VII; to be hostile work
environment, workplace must be permeated with discriminatory intimidation, ridicule
and insult that is sufficiently severe and pervasive); see also Berryhill v. Schriro, 137
F.3d 1073, 1077 (8th Cir. 1998) (court can affirm summary judgment decision on any
basis supported by record).

      Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
We also deny Hayes’s pending motion.
                     ______________________________



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