Appellate Case: 21-1011 Document: 010110622017 Date Filed: 12/21/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2021 _________________________________ Christopher M. Wolpert Clerk of Court DENISE MICHELLE HARPER,
Plaintiff - Appellant,
v. No. 21-1011 (D.C. No. 1:19-CV-02791-MEH) ARROW ELECTRONICS, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________
Denise Michelle Harper, pro se, appeals the magistrate judge’s order granting
Arrow Electronics’s (Arrow) motion for summary judgment on her claims for
discrimination, harassment, and retaliation in violation of Title VII of the Civil
Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of
1967 (ADEA). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 The parties consented to the jurisdiction of the magistrate judge. Appellate Case: 21-1011 Document: 010110622017 Date Filed: 12/21/2021 Page: 2
I. BACKGROUND
The magistrate judge found the following undisputed material facts on
summary judgment. Ms. Harper, a 49-year-old African American, was hired by
Arrow in January 2016 as an accounting coordinator/analyst in its Supplier
Accounting Department. Her official job title is Supplier Accounting Associate.
Ms. Harper, who is currently on long-term disability, is still employed by Arrow in
the same job.
During the relevant time, Ms. Harper’s immediate supervisor was Supplier
Accounting Associate Manager, Kim Griffin, a 47-year-old Caucasian. Ms. Griffin’s
immediate supervisor was Supplier Accounting/Finance Manager, Diann Decker, a
54-year-old Caucasian. Casey Gustafson, a 28-year-old Caucasian male who also
reported to Ms. Griffin, was Ms. Harper’s colleague.
The following events related to Ms. Harper’s employment took place in 2016.
From August 24 through November 15, Ms. Harper was on Family and Medical
Leave Act (FMLA) leave approved by Arrow. At her year-end performance review,
Ms. Griffin evaluated Ms. Harper’s overall performance as having achieved
expectations. Ms. Griffin noted Ms. Harper sometimes used a tone in emails or on
telephone calls that came off as abrupt or unprofessional and told her she needed to
work on her communication skills.
In early 2017, Ms. Griffin discussed with Ms. Harper some complaints she had
received about the tone of Ms. Harper’s oral and written communications with other
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employees and outside vendors. Ms. Griffin documented their conversation in an
email sent to Ms. Harper on January 23.
In April, Ms. Harper contacted Human Resources and lodged a complaint
concerning a comment made by Ms. Griffin that she found offensive—namely that a
“Young Professionals” program attended by Ms. Harper was “for young people” or
“millennials.” R., Vol. 1 at 203 (internal quotation marks omitted). Human
Resources promptly investigated and notified Ms. Harper that action had been taken
to ensure the conduct would not be repeated. Ms. Griffin never made any other
comments or remarks related to Ms. Harper’s age, and at no time did anyone at
Arrow make any offensive or derogatory comments about her race, color, or gender.
Nonetheless, in May 2017, Ms. Harper filed a charge of discrimination and
retaliation with the Colorado Civil Rights Division (CCRD) based on Ms. Griffin’s
comment about her attendance at the “Young Professionals” program. But in
September, Ms. Harper asked the CCRD to close its investigation because Arrow was
looking into her concerns. Ms. Harper later emailed the agency to confirm that she
wanted to withdraw her complaint, stating her belief that Ms. Griffin did not intend
any offense. CCRD dismissed the charge in November. Ms. Harper acknowledged
that by withdrawing the charge, she could not pursue the allegations through any
administrative or judicial process.
For her year-end performance review in 2017, Ms. Griffin rated Ms. Harper’s
overall performance as having achieved expectations and noted that she had moved to
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the Price Variance Team where she was thriving. Ms. Harper received her regular
three percent raise. At no time has Ms. Harper’s compensation been reduced.
Year 2018 was uneventful other than Ms. Harper taking FMLA leave in
December. Ms. Griffin once again rated her overall job performance as having
achieved expectations.
In 2019, Mr. Gustafson applied for and was selected as Team Lead in the
Supplier Accounting Department. As Team Lead, he received first-hand training,
which he was then expected to share with the rest of the team, including Ms. Harper.
Ms. Harper did not apply for the Team Lead position.
On March 1, 2019, Angela Gibson, a 47-year-old African American manager
in the Accounts Payable Department, received a complaint from a staff member about
the tone of Ms. Harper’s emails. Ms. Gibson promptly contacted Ms. Griffin, who
then met with Ms. Harper to discuss the complaint. On March 15, Ms. Griffin issued
an Employee Communication Record (ECR) to Ms. Harper concerning her
unprofessional behavior. An ECR is designed to document communication with an
employee—not a disciplinary tool—and had no adverse impact on Ms. Harper’s
employment. Ms. Harper disagreed with the assessment and asked Human Resources
to review the ECR. Jordan Price, a Regional Human Resources Manager, conducted
a review and told Ms. Harper the feedback in the ECR was appropriate.
Still dissatisfied, on April 2, 2019, Ms. Harper called Arrow’s AlertLine to file
a complaint. The next day, Regional Human Resources Manager Elise Lieberman
met with Ms. Harper and documented her concerns. Ms. Lieberman and Ms. Price
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then interviewed the parties and other witnesses identified by Ms. Harper and
prepared findings and conclusions. Following the investigation, Ms. Lieberman and
Ms. Price met with Ms. Harper and shared the results. Ms. Harper disagreed with the
findings and conclusions, and on April 12, filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC).
Ms. Decker conducted Ms. Harper’s 2019 performance review, which rated her
overall job performance as having achieved expectations but noted she should focus
on improving her awareness of how her communications were perceived by others.
Ms. Harper admitted her performance reviews from 2016 through 2019 were
consistent.
Ms. Harper has been on a medical leave of absence since April 27, 2019.
Arrow has short-term and long-term disability plans for its employees and also
provides FMLA leave, personal medical leave, and personal leaves of absence.
These plans and leave programs are administered by a third-party administrator. At
no time has Arrow denied Ms. Harper the leave she requested under any of its plans
or programs.
Ms. Harper exhausted twelve weeks of FMLA leave from April 27, 2019, to
July 20, 2019; she received short-term disability benefits from April 27, 2019, to
October 23, 2019; and she has received long-term disability benefits from
October 24, 2019, through the present.
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II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo.”
Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is genuine if “the evidence is such that a reasonable
[trier of fact] could return a verdict for the nonmoving party,” and a fact is material
when it may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Among other things, “[a]n appellant’s opening brief must identify appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (internal quotation marks omitted). We have “repeatedly insisted
that pro se parties follow the same rules of procedure that govern other litigants.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)
(internal quotation marks omitted).
Consistent with this requirement, “[w]hen a pro se litigant fails to comply with
[these] rule[s], we cannot fill the void by crafting arguments and performing the
necessary legal research.” Id. at 841 (internal quotation marks omitted). As a result,
“we routinely have declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Bronson, 500 F.3d at 1104.
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Instead, inadequately briefed issues “will be deemed waived.” Garrett, 425 F.3d
at 841.
Ms. Harper fails to advance any adequately developed arguments on appeal.
Indeed, Ms. Harper never mentions the magistrate judge’s order or any of the several
grounds on which he granted Arrow’s motion for summary judgment, nor does she
cite to the record or provide any legal authority to support her claims for relief under
either Title VII or the ADEA. But even if Ms. Harper had properly challenged the
order, which she failed to do, our review reveals no error.
III. TITLE VII
A. Exhaustion of Administrative Remedies
As an affirmative defense, Arrow alleged that Ms. Harper failed to exhaust her
administrative remedies as to any Title VII claims that arose before June 12, 2018.
To exhaust a Title VII claim “in a deferral state like Colorado . . . a putative plaintiff
[must] file a charge of discrimination with the EEOC within 300 days of the
allegedly unlawful employment practice.” Edmonds-Radford v. Sw. Airlines Co.,
17 F.4th 975, 988 (10th Cir. 2021) (internal quotation marks omitted).
Here, Ms. Harper filed her charge of discrimination on April 12, 2019. Three
hundred days prior to that date is June 12, 2018. Therefore, any Title VII claims
based on acts that took place before June 12, 2018, were not exhausted.
B. Discrimination
To prevail on a Title VII claim, “a plaintiff must show that [her] employer
intentionally discriminated against [her] for a reason prohibited by the statute,”
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which includes race, color, or gender. Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303,
1306 (10th Cir. 2005). “When a plaintiff relies on circumstantial evidence to prove
employment discrimination, we apply the three-step burden-shifting framework set
forth in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973),] and its progeny.”
Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). “If the employee makes a
prima facie showing, the burden shifts to the defendant employer to state a
legitimate, nondiscriminatory reason for its adverse employment action.” Id.
(internal quotation marks omitted). “If the employer meets this burden, then
summary judgment is warranted unless the employee can show there is a genuine
issue of material fact as to whether the proffered reasons are pretextual.” Id.
To demonstrate a prima facie case of discrimination, the plaintiff must show
“(1) the victim belongs to a protected class; (2) the victim suffered an adverse
employment action; and (3) the challenged action took place under circumstances
giving rise to an inference of discrimination.” EEOC v. PVNF, L.L.C., 487 F.3d 790,
800 (10th Cir. 2007). The magistrate judge found, and we agree, that Ms. Harper
failed to establish a prima facie case because, among other things, she did not suffer
an adverse employment action.
“An adverse employment action includes acts that constitute a significant
change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change
in benefits.” Dick v. Phone Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005)
(brackets and internal quotation marks omitted). Although “we liberally interpret the
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second prong of the prima facie case and take a case-by-case approach, . . . we will
not consider a mere inconvenience or an alteration of job responsibilities to be an
adverse employment action.” Id. (internal quotation marks omitted).
Ms. Harper maintains she suffered an adverse employment action when
Mr. Gustafson, the Team Lead, received first-hand training that allowed him to
“create his own notes,” while she had no such opportunity and instead was forced to
rely on “his notes to use for [her] training.” Aplt. Opening Br. at 2. But Ms. Harper
never explains how this alleged disparity resulted in any significant change in her
employment status, compensation, or benefits. Also without merit is Ms. Harper’s
claim that she was demoted when she returned from FMLA leave in 2016. We agree
with the magistrate judge that “the alleged demotion, even if assumed true, occurred
in 2016,” and “any action that happened prior to June 12, 2018 is time-barred.”
R., Vol. 1 at 213. Summary judgment was therefore proper.
C. Harassment
To avoid summary judgment on a Title VII harassment claim, Ms. Harper
“must present evidence that creates a genuine dispute of material fact as to whether
the workplace is permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of [her] employment.”
Lounds v. Lincare, 812 F.3d 1208, 1222 (10th Cir. 2015) (brackets and internal
quotation marks omitted). Specifically, to prove a prima facie case Ms. Harper must
show:
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(1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on [race, color, or gender]; and (4) [due to the harassment’s severity or pervasiveness], the harassment altered a term, condition, or privilege of the plaintiff’s employment and created an abusive working environment. Id. (brackets and internal quotation marks omitted). We agree with the magistrate
judge that Ms. Harper failed to establish a prima facie case because, among other
things, she failed to establish harassment based on race, color, or gender.
The only arguably derogatory or offensive comment made by anyone at Arrow
was in 2017, when Ms. Griffin said she thought the “Young Professionals” program
attended by Ms. Harper was intended for young people. This comment had nothing to
do with race, color, or gender. In any event, the comment was made before June 12,
2018, and is time-barred. Therefore, summary judgment was proper.
D. Retaliation
The McDonnell Douglas burden-shifting framework also applies to Title VII
retaliation claims. See Lounds, 812 F.3d at 1233-34 (“Once the plaintiff successfully
asserts a prima facie retaliation case, the burden shifts to the defendant (i.e., the
employer) to come forward with a legitimate, non-retaliatory rationale for the adverse
employment action. If the defendant does so, the plaintiff must show that the
defendant’s proffered rationale is pretextual.” (ellipsis and internal quotation marks
omitted)).
To establish a prima facie case, the plaintiff must prove “(1) that she 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
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existed between the protected activity and the materially adverse action.” Id.
(brackets and internal quotation marks omitted). A “materially adverse” action is
action that would “dissuade[] a reasonable worker” from engaging in protected
activity.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal quotation marks omitted
Arrow conceded that Ms. Harper engaged in protected activity when she filed
a complaint with the EEOC on April 12, 2019; however, it disagreed that she
demonstrated a materially adverse employment action because nothing arguably
adverse happened to her after she filed her complaint. Recall that Ms. Harper began
medical leave on April 27, 2019—two weeks after filing her complaint with the
EEOC—and received a favorable performance review for 2019. Therefore, summary
judgment was proper.
IV. ADEA
As explained previously, Arrow alleged as an affirmative defense that
Ms. Harper failed to exhaust her administrative remedies as to any claims that arose
before June 12, 2018. To exhaust a claim under the ADEA in a deferral state like
Colorado, the putative plaintiff must file a charge of discrimination with either the
EEOC or an authorized state or local agency within 300 days of the allegedly
unlawful employment practice. See 29 U.S.C. § 626(d)(1)(B); see also Thiessen v.
Gen. Elec. Cap. Corp., 267 F.3d 1095, 1109 n.10 (10th Cir. 2001).
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Ms. Harper filed her charge of discrimination on April 12, 2019. Three
hundred days prior to that date is June 12, 2018. Therefore, any ADEA claims based
on acts that took place before June 12, 2018, were not exhausted.
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual or otherwise discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The McDonnell Douglas
three-step framework applies to claims of discrimination under the ADEA based on
circumstantial evidence. See Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278
(10th Cir. 2010).
To prove a prima facie case at step one, the plaintiff must show, among other
things, that: (1) she belongs to the class protected by the ADEA; (2) she suffered an
adverse employment action; and (3) she was treated less favorably than others not in
the protected class. See id. at 1279. Ms. Harper’s age-discrimination claim fails for
the same reason her Title VII discrimination claim fails—the lack of an adverse
employment action. Moreover, the only age-related comment was made in 2017, and
is thus time-barred. Summary judgment was therefore proper.
Ms. Harper’s apparent claim is that she was subjected to a hostile work
environment based on her age. “For [an ADEA] hostile environment claim to survive
a summary judgment motion, a plaintiff must show that a rational jury could find that
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the workplace was permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” MacKenzie v. City &
Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005) (brackets and internal
quotation marks omitted), abrogated in part on other grounds by Lincoln, 900 F.3d
at 1185.
The only arguably derogatory or offensive comment remotely related to
Ms. Harper’s age was made by Ms. Griffin in 2017, when she commented on
Ms. Harper’s attendance at the “Young Professionals” program. This single
comment did not create a hostile work environment. Moreover, the comment was
made before June 12, 2018, and is time-barred. Therefore, summary judgment was
proper.
The McDonnell Douglas burden-shifting framework applies to Ms. Harper’s
ADEA retaliation claim. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1201
(10th Cir. 2008). “A prima facie case of [ADEA] retaliation requires the plaintiff to
show that (1) he or she engaged in protected opposition to discrimination, (2) a
reasonable employee would have considered the challenged employment action
materially adverse, and (3) a causal connection existed between the protected activity
and the materially adverse action.” Id.
As explained previously, Arrow conceded that Ms. Harper engaged in
protected activity when she filed a complaint with the EEOC on April 12, 2019;
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however, it disagreed that she demonstrated a materially adverse employment action.
We agree with the magistrate judge that nothing even arguably adverse happened to
Ms. Harper after she filed her complaint. Therefore, summary judgment was proper.
V. CONCLUSION
The judgment is affirmed.
We deny Ms. Harper’s motions to supplement the record filed on August 4,
2021; August 13, 2021; October 4, 2021; and October 15, 2021. We grant
Ms. Harper’s motion to proceed on appeal without prepayment of costs or fees.
Entered for the Court
Gregory A. Phillips Circuit Judge