FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court RAFAEL G. HANKISHIYEV,
Plaintiff-Appellant,
v. No. 17-4146 (D.C. No. 2:15-CV-00651-JNP) ARUP LABORATORIES; TOM (D. Utah) TOPIC; DAVID ROGERS; BEA LAYTON,
Defendants-Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges. _________________________________
Mr. Rafael G. Hankishiyev sued his former employer (ARUP
Laboratories) and three of its employees, invoking Title VII of the Civil
Rights Act for claims of unlawful retaliation and age discrimination. The
district court granted summary judgment to the defendants on the
retaliation claim and dismissed the age-discrimination claim for lack of
* The parties do not request oral argument, and it would not materially help us to decide this appeal. As a result, we decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). jurisdiction. The court also sanctioned Mr. Hankishiyev, requiring him to
pay ARUP’s attorney fees and costs for two depositions. We affirm.
I. Background
Request for Enrollment in MLT Program. Mr. Hankishiyev started
working for ARUP in September 2007. ARUP offered a program that
allowed employees to earn a Medical Laboratory Technician (MLT) degree
free of charge. Mr. Hankishiyev already had an MLT degree, but in 2012
he applied to participate in the degree program, stating on his application:
With Arup’s discrimination policy (in reality, not by declaration), its supervisors, using the loop-hole instructions in hiring process, prefer a school students/drop-outs from the first-sort people over the ASCP Certificated MLT from the second-sort people. My goal is to study this on-line program, take more classes, etc, and see how many MLT diploma, ASCP Certifications, BSs, Evaluations for Medical Technologist, President Lists must the second-sort individual obtain to get the MLT position in the ARUP’s cast system. It will be my contribution to ARUP because a Patient Care is not just declaration; it’s the practice that goes along with other actions.
R. at 46 (emphasis in original).
ARUP rejected the application, explaining to Mr. Hankishiyev that
because he already had an MLT degree, his participation in the program
would result in an inefficient use of ARUP’s resources and take a spot
from another employee who was eligible to participate.
Self-Assessment. Later that year, Mr. Hankishiyev completed a self-
assessment, commenting that his top responsibility for the past year and
his goal for the coming year was “praying for management.” Id. at 63
2 (internal quotation marks omitted). When questioned about the comment,
he reportedly said: “I don’t even know how to pray, so you can scratch that
off the list.” Id. (internal quotation marks omitted). ARUP concluded that
Mr. Hankishiyev’s responses displayed a “negative attitude toward . . . ARUP” and
his “anger and almost hatred toward ARUP [was] not healthy or acceptable.”
Id. at 64. ARUP terminated Mr. Hankishiyev’s employment in December
2012.
EEOC Complaint. Two months later, Mr. Hankishiyev complained to
the Equal Employment Opportunity Commission (EEOC). On the EEOC
charge form, Mr. Hankishiyev checked boxes for “Title VII” and
“Retaliation,” leaving blank the boxes for “ADEA” (referring to the Age
Discrimination in Employment Act) and “Age.” Id. at 669. An EEOC
investigator “concluded that it [was] unlikely that additional investigation
would result in a finding that the law (Title VII) was violated.” Id. at 21.
Mr. Hankishiyev then brought this suit for retaliation and age
discrimination.
Deposition Sanction. In this suit, Mr. Hankishiyev was deposed three
times because of his lack of cooperation in the first two depositions. After
Mr. Hankishiyev was deposed the first time, a magistrate judge granted
ARUP’s motion to compel cooperation in depositions because Mr.
Hankishiyev had refused to answer numerous questions, including basic 3 questions like his name, age, and home address. In granting the motion, the
magistrate judge ordered Mr. Hankishiyev to (1) “directly and succinctly
answer all questions posed to him in a non-argumentative fashion,” (2)
“review and identify all exhibits presented to him and directly and
succinctly answer questions regarding such exhibits in a non-argumentative
fashion,” and (3) “otherwise comply with the Federal Rules of Civil
Procedure.” Id. at 236.
After a second deposition, the magistrate judge determined that Mr.
Hankishiyev had violated the order “by making excessive objections,
refusing to directly answer questions and failing to properly review and
identify exhibits presented to him.” Id. at 422. With this determination, the
magistrate judge ordered Mr. Hankishiyev to pay the reasonable expenses
and attorney fees related to the second deposition, to cooperate with
counsel for ARUP at a third deposition, and to pay the reasonable expenses
and attorney fees related to the third deposition. Ultimately, the court
ordered Mr. Hankishiyev to pay ARUP $8,723.09 for the second and third
depositions.
Proceedings in District Court. The district court granted summary
judgment to ARUP on the retaliation claim, reasoning that Mr. Hankishiyev
had not shown protected opposition to discrimination or causation between
his termination and a protected activity. In addition, the court dismissed
the age-discrimination claim without prejudice, reasoning that Mr.
4 Hankishiyev’s failure to exhaust this claim precluded subject-matter
jurisdiction.
Appellate Arguments. On appeal, Mr. Hankishiyev argues that
the district court erred by concluding that he had failed to make a prima facie showing of retaliation,
he properly exhausted his age-discrimination claim or should not have had to exhaust administrative remedies because ARUP had caused him psychological distress, and
the magistrate judge erred in requiring Mr. Hankishiyev to pay for his second and third depositions.
II. Summary Judgment on the Retaliation Claim
On the summary-judgment ruling, we engage in de novo review. See
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th
Cir. 2008). Summary judgment is appropriate only if there is no genuine
dispute as to a material fact and ARUP is entitled to judgment as a matter
of law. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). We
view the evidence in the light most favorable to Mr. Hankishiyev and draw
all reasonable inferences in his favor. Id.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court RAFAEL G. HANKISHIYEV,
Plaintiff-Appellant,
v. No. 17-4146 (D.C. No. 2:15-CV-00651-JNP) ARUP LABORATORIES; TOM (D. Utah) TOPIC; DAVID ROGERS; BEA LAYTON,
Defendants-Appellees. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges. _________________________________
Mr. Rafael G. Hankishiyev sued his former employer (ARUP
Laboratories) and three of its employees, invoking Title VII of the Civil
Rights Act for claims of unlawful retaliation and age discrimination. The
district court granted summary judgment to the defendants on the
retaliation claim and dismissed the age-discrimination claim for lack of
* The parties do not request oral argument, and it would not materially help us to decide this appeal. As a result, we decide the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). jurisdiction. The court also sanctioned Mr. Hankishiyev, requiring him to
pay ARUP’s attorney fees and costs for two depositions. We affirm.
I. Background
Request for Enrollment in MLT Program. Mr. Hankishiyev started
working for ARUP in September 2007. ARUP offered a program that
allowed employees to earn a Medical Laboratory Technician (MLT) degree
free of charge. Mr. Hankishiyev already had an MLT degree, but in 2012
he applied to participate in the degree program, stating on his application:
With Arup’s discrimination policy (in reality, not by declaration), its supervisors, using the loop-hole instructions in hiring process, prefer a school students/drop-outs from the first-sort people over the ASCP Certificated MLT from the second-sort people. My goal is to study this on-line program, take more classes, etc, and see how many MLT diploma, ASCP Certifications, BSs, Evaluations for Medical Technologist, President Lists must the second-sort individual obtain to get the MLT position in the ARUP’s cast system. It will be my contribution to ARUP because a Patient Care is not just declaration; it’s the practice that goes along with other actions.
R. at 46 (emphasis in original).
ARUP rejected the application, explaining to Mr. Hankishiyev that
because he already had an MLT degree, his participation in the program
would result in an inefficient use of ARUP’s resources and take a spot
from another employee who was eligible to participate.
Self-Assessment. Later that year, Mr. Hankishiyev completed a self-
assessment, commenting that his top responsibility for the past year and
his goal for the coming year was “praying for management.” Id. at 63
2 (internal quotation marks omitted). When questioned about the comment,
he reportedly said: “I don’t even know how to pray, so you can scratch that
off the list.” Id. (internal quotation marks omitted). ARUP concluded that
Mr. Hankishiyev’s responses displayed a “negative attitude toward . . . ARUP” and
his “anger and almost hatred toward ARUP [was] not healthy or acceptable.”
Id. at 64. ARUP terminated Mr. Hankishiyev’s employment in December
2012.
EEOC Complaint. Two months later, Mr. Hankishiyev complained to
the Equal Employment Opportunity Commission (EEOC). On the EEOC
charge form, Mr. Hankishiyev checked boxes for “Title VII” and
“Retaliation,” leaving blank the boxes for “ADEA” (referring to the Age
Discrimination in Employment Act) and “Age.” Id. at 669. An EEOC
investigator “concluded that it [was] unlikely that additional investigation
would result in a finding that the law (Title VII) was violated.” Id. at 21.
Mr. Hankishiyev then brought this suit for retaliation and age
discrimination.
Deposition Sanction. In this suit, Mr. Hankishiyev was deposed three
times because of his lack of cooperation in the first two depositions. After
Mr. Hankishiyev was deposed the first time, a magistrate judge granted
ARUP’s motion to compel cooperation in depositions because Mr.
Hankishiyev had refused to answer numerous questions, including basic 3 questions like his name, age, and home address. In granting the motion, the
magistrate judge ordered Mr. Hankishiyev to (1) “directly and succinctly
answer all questions posed to him in a non-argumentative fashion,” (2)
“review and identify all exhibits presented to him and directly and
succinctly answer questions regarding such exhibits in a non-argumentative
fashion,” and (3) “otherwise comply with the Federal Rules of Civil
Procedure.” Id. at 236.
After a second deposition, the magistrate judge determined that Mr.
Hankishiyev had violated the order “by making excessive objections,
refusing to directly answer questions and failing to properly review and
identify exhibits presented to him.” Id. at 422. With this determination, the
magistrate judge ordered Mr. Hankishiyev to pay the reasonable expenses
and attorney fees related to the second deposition, to cooperate with
counsel for ARUP at a third deposition, and to pay the reasonable expenses
and attorney fees related to the third deposition. Ultimately, the court
ordered Mr. Hankishiyev to pay ARUP $8,723.09 for the second and third
depositions.
Proceedings in District Court. The district court granted summary
judgment to ARUP on the retaliation claim, reasoning that Mr. Hankishiyev
had not shown protected opposition to discrimination or causation between
his termination and a protected activity. In addition, the court dismissed
the age-discrimination claim without prejudice, reasoning that Mr.
4 Hankishiyev’s failure to exhaust this claim precluded subject-matter
jurisdiction.
Appellate Arguments. On appeal, Mr. Hankishiyev argues that
the district court erred by concluding that he had failed to make a prima facie showing of retaliation,
he properly exhausted his age-discrimination claim or should not have had to exhaust administrative remedies because ARUP had caused him psychological distress, and
the magistrate judge erred in requiring Mr. Hankishiyev to pay for his second and third depositions.
II. Summary Judgment on the Retaliation Claim
On the summary-judgment ruling, we engage in de novo review. See
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th
Cir. 2008). Summary judgment is appropriate only if there is no genuine
dispute as to a material fact and ARUP is entitled to judgment as a matter
of law. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). We
view the evidence in the light most favorable to Mr. Hankishiyev and draw
all reasonable inferences in his favor. Id.
To satisfy this standard on the retaliation claim, Mr. Hankishiyev
needed to “demonstrate (1) that he [had] engaged in protected opposition
to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action.”
5 Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202
(10th Cir. 2006) (footnote omitted).
Mr. Hankishiyev argues that he engaged in protected opposition to
age discrimination, relying on his application for the MLT degree program.
On his application, Mr. Hankishiyev wrote that ARUP had a
“discrimination policy” based on a preference for “school students/drop-
outs.” R. at 46. But “generalized employment complaints” do not amount to
protected opposition to discrimination. Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1202 (10th Cir. 2008). “Although no magic words are
required, to qualify as protected opposition the employee must convey to
the employer his or her concern that the employer has engaged in a
practice made unlawful by the ADEA.” Id. at 1203.
The allegations in Mr. Hankishiyev’s MLT application do not suggest
protected opposition to discrimination based on age. Nor has Mr.
Hankishiyev shown that any of his statements could entail protected
activity.
Moreover, “[u]nless an employer knows that an employee is engaging
in protected activity, it cannot retaliate against that employee because of
the protected conduct, as required by statute.” Jones v. United Parcel
Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007) (emphasis in original).
Mr. Hankishiyev does not identify any evidence that ARUP
6 interpreted his comments as protected opposition to discrimination or
retaliated for a protected activity.
Thus, Mr. Hankishiyev has not presented evidence of a causal connection
between his alleged protected activity and the termination. See Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).
We agree with the district court that Mr. Hankishiyev failed to
establish the first and third elements of a prima facie case for retaliation.
Therefore, we uphold the award of summary judgment on this claim.
III. Dismissal of the Discrimination Claim
We also review de novo the district court’s dismissal of the age-
discrimination claim for lack of subject-matter jurisdiction. Radil v.
Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). “The party
invoking federal jurisdiction bears the burden of establishing such
jurisdiction as a threshold matter.” Id. For jurisdiction over the age-
discrimination claim, Mr. Hankishiyev had to exhaust the EEOC’s
available administrative remedies. Shikles v. Sprint/United Mgmt. Co., 426
F.3d 1304, 1306 (10th Cir. 2005).
Mr. Hankishiyev contends that the district court erred in concluding
that he had failed to exhaust available administrative remedies on the age-
discrimination claim. He concedes that he failed to check the charge form’s
box for ADEA and age discrimination, and courts generally look to the
7 charge form to determine whether administrative remedies have been
exhausted. Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017). Thus,
Mr. Hankishiyev’s failure to check the ADEA/age-discrimination box on
the charge form would generally preclude jurisdiction.
Mr. Hankishiyev contends that his deficient charge form was cured
by his EEOC intake questionnaire, where he raised the age-discrimination
claim. We reject this contention.
In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the
Supreme Court held that a filing other than a formal charge, such as a
questionnaire, may be considered as a charge if the filing contains the
required information and can reasonably be interpreted as a request for
agency action. Fed. Express Corp., 552 U.S. at 402. But in Federal
Express Corp., the claimant had filed only a questionnaire; thus, the
Supreme Court did not address a situation where a claimant files both a
formal charge and questionnaire.
Because Mr. Hankishiyev filed a formal charge claiming only
retaliation, not age discrimination, we decline to read allegations from the
questionnaire into the charge itself. To do so would undermine the policies
requiring exhaustion. See Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th
Cir. 1994) (Administrative exhaustion in discrimination cases “(1) . . .
give[s] notice of the alleged violation to the charged party; and (2) . . .
give[s] the EEOC an opportunity to conciliate the claim.”), abrogated on
8 other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002); see also Green v. JP Morgan Chase Bank Nat’l Ass’n, 501 F.
App’x 727, 731 (10th Cir. 2012) (unpublished) (concluding that the
statutory scheme would be defeated if we were to find exhaustion based on
inclusion of a claim in the intake questionnaire when the claim is omitted
in a subsequent formal charge). 1 Focusing on the charge form, we conclude
that Mr. Hankishiyev did not exhaust his age-discrimination claim.
Mr. Hankishiyev urges us to allow pursuit of the claim anyway
because of the distress caused by ARUP. But “[s]ubject-matter jurisdiction
involves a court’s authority to hear a given type of case, and may not be
waived.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.
2004) (internal citation omitted). As a result, the district court correctly
dismissed the age-discrimination claim based on the absence of subject-
matter jurisdiction.
IV. Imposition of the Discovery Sanction
Magistrate judges enjoy the authority to enter discovery rulings. See
28 U.S.C. § 636(b)(1)(A). But such rulings are not directly appealable to
this court. See S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1269
(10th Cir. 2010). Before appealing to our court, the aggrieved party must
properly file an objection, obtaining review by the district judge. Id. A
1 Green is not precedential, but its analysis of Federal Express Corp. is persuasive. 9 party has fourteen days to object to a nondispositive ruling by a magistrate
judge and “may not assign as error a defect in the [magistrate judge’s]
order not timely objected to.” Fed. R. Civ. P. 72(a).
The magistrate ordered sanctions on November 3, 2016, and Mr.
Hankishiyev waited 27 days to object. Lack of a properly filed objection
precludes our review. See Merrill, 600 F.3d at 1269.
V. Conclusion
The district court did not err in granting ARUP’s motion for
summary judgment on the retaliation claim, dismissing Mr. Hankishiyev’s
claim for age discrimination, and imposing discovery sanctions on Mr.
Hankishiyev. We affirm.
Entered for the Court
Robert E. Bacharach Circuit Judge