Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 18, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SHAR ISSA MURPHY,
Plaintiff - Appellant,
v. No. 23-1394 (D.C. No. 1:22-CV-02098-STV) DENIS MCDONOUGH; DEPARTMENT (D. Colo.) OF VETERANS AFFAIRS AGENCY, AURORA, CO; DEPARTMENT OF VETERANS AFFAIRS, OFFICE OF GENERAL COUNSEL,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges. _________________________________
Shar Issa Murphy filed this lawsuit—raising several employment-
discrimination claims—after resigning from her job at the Department of Veterans
Affairs. The district court granted the defendants’ motion to dismiss her amended
complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 2
I. Background
Ms. Murphy represented herself in district court, and she continues to do so on
appeal. For that reason, we construe her filings liberally. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
This appeal requires us to review the dismissal of Ms. Murphy’s amended
complaint. She filed it after the district court dismissed her original complaint
without prejudice and gave her an opportunity to file an amended one. The 12-page
order dismissing the original complaint set out the law governing Ms. Murphy’s
claims and described the shortcomings of her factual allegations.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
sufficient factual allegations “to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
When ruling on a Rule 12(b)(6) motion, courts must accept the plaintiff’s
well-pleaded facts as true and draw all reasonable inferences in her favor. See Abdi
v. Wray, 942 F.3d 1019, 1025 (10th Cir. 2019). Mindful of this standard, we turn to
the allegations in Ms. Murphy’s amended complaint.
Ms. Murphy is a black woman.1 She worked for the Department of Veterans
Affairs for several years. She “constantly complained” about harassment from her
1 Ms. Murphy’s amended complaint did not explicitly identify her race or sex. Although her original complaint did identify those things, the allegations in her amended complaint superseded those of the original complaint. See May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019). We will assume that a liberal reading of Ms. Murphy’s amended complaint could reveal her race and sex. 2 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 3
supervisor, David Spurgin. R. at 116. As a result, her “area was declared a hostile
work environment” and she was stationed in a different part of the hospital. Id.
Management decided that Mr. Spurgin and another employee, Christine Robbins,
“were to stay away from” Ms. Murphy until a fact-finding process concluded. Id.
Yet Mr. Spurgin and Ms. Robbins continued to walk into Ms. Murphy’s workstation,
often for a minor reason or no reason at all. On one occasion Ms. Murphy was asked
to cover a shift in the part of the hospital in which her alleged harassers worked.
Mr. Spurgin directed her “to sit in the front at the window,” where a veteran sprayed
her in the face with an unknown substance. Id.
A white woman “made a complaint about the same type of harassment from”
Mr. Spurgin and Ms. Robbins. R. at 117. Management came to the “work area to
intervene” almost immediately. Id.
At one point, Mr. Spurgin stopped working for the agency, but he returned
about a year later. Ms. Murphy’s mental health then deteriorated. She began therapy
and learned that she had symptoms of posttraumatic stress disorder—dizziness, panic
attacks, an inability to focus on her work, and “a constant state of fight or flight.” R.
at 118. She told Eric Maestas (presumably her new supervisor) about her symptoms
and told him that Mr. Spurgin’s coming near her triggered them. Mr. Maestas “tried
to put something into place” to keep Mr. Spurgin from coming near her, but
Mr. Spurgin nevertheless approached her desk again on one occasion. Id. Ms.
Murphy took medical leave before eventually resigning.
3 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 4
The district court construed Ms. Murphy’s amended complaint to raise four
claims: (1) race and sex discrimination under Title VII, (2) hostile work environment
under Title VII, (3) failure to accommodate under the Rehabilitation Act, and
(4) hostile work environment under the Rehabilitation Act. The court dismissed each
claim.
II. Discussion
We review the district court’s decision de novo. See Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Ms. Murphy alleges facts in her
appellate briefing that she did not include in her amended complaint. In reviewing
the district court’s decision, we consider only those facts alleged in the amended
complaint. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).
A. Title VII Discrimination
Title VII prohibits employers from discriminating against individuals based on
race and sex. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove a violation of that
prohibition either through direct evidence of discrimination or through the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Khalik, 671 F.3d at 1192. To make a prima facie case of
discrimination—shifting the burden to the defendant to articulate a legitimate,
nondiscriminatory reason for the challenged action—a plaintiff must show (1) she is
a member of a protected class, and (2) she suffered an adverse employment action
that (3) occurred under circumstances giving rise to an inference of discrimination.
See Bennett v.
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Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 18, 2024 _________________________________ Christopher M. Wolpert Clerk of Court SHAR ISSA MURPHY,
Plaintiff - Appellant,
v. No. 23-1394 (D.C. No. 1:22-CV-02098-STV) DENIS MCDONOUGH; DEPARTMENT (D. Colo.) OF VETERANS AFFAIRS AGENCY, AURORA, CO; DEPARTMENT OF VETERANS AFFAIRS, OFFICE OF GENERAL COUNSEL,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges. _________________________________
Shar Issa Murphy filed this lawsuit—raising several employment-
discrimination claims—after resigning from her job at the Department of Veterans
Affairs. The district court granted the defendants’ motion to dismiss her amended
complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm.
* 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. Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 2
I. Background
Ms. Murphy represented herself in district court, and she continues to do so on
appeal. For that reason, we construe her filings liberally. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
This appeal requires us to review the dismissal of Ms. Murphy’s amended
complaint. She filed it after the district court dismissed her original complaint
without prejudice and gave her an opportunity to file an amended one. The 12-page
order dismissing the original complaint set out the law governing Ms. Murphy’s
claims and described the shortcomings of her factual allegations.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain
sufficient factual allegations “to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
When ruling on a Rule 12(b)(6) motion, courts must accept the plaintiff’s
well-pleaded facts as true and draw all reasonable inferences in her favor. See Abdi
v. Wray, 942 F.3d 1019, 1025 (10th Cir. 2019). Mindful of this standard, we turn to
the allegations in Ms. Murphy’s amended complaint.
Ms. Murphy is a black woman.1 She worked for the Department of Veterans
Affairs for several years. She “constantly complained” about harassment from her
1 Ms. Murphy’s amended complaint did not explicitly identify her race or sex. Although her original complaint did identify those things, the allegations in her amended complaint superseded those of the original complaint. See May v. Segovia, 929 F.3d 1223, 1229 (10th Cir. 2019). We will assume that a liberal reading of Ms. Murphy’s amended complaint could reveal her race and sex. 2 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 3
supervisor, David Spurgin. R. at 116. As a result, her “area was declared a hostile
work environment” and she was stationed in a different part of the hospital. Id.
Management decided that Mr. Spurgin and another employee, Christine Robbins,
“were to stay away from” Ms. Murphy until a fact-finding process concluded. Id.
Yet Mr. Spurgin and Ms. Robbins continued to walk into Ms. Murphy’s workstation,
often for a minor reason or no reason at all. On one occasion Ms. Murphy was asked
to cover a shift in the part of the hospital in which her alleged harassers worked.
Mr. Spurgin directed her “to sit in the front at the window,” where a veteran sprayed
her in the face with an unknown substance. Id.
A white woman “made a complaint about the same type of harassment from”
Mr. Spurgin and Ms. Robbins. R. at 117. Management came to the “work area to
intervene” almost immediately. Id.
At one point, Mr. Spurgin stopped working for the agency, but he returned
about a year later. Ms. Murphy’s mental health then deteriorated. She began therapy
and learned that she had symptoms of posttraumatic stress disorder—dizziness, panic
attacks, an inability to focus on her work, and “a constant state of fight or flight.” R.
at 118. She told Eric Maestas (presumably her new supervisor) about her symptoms
and told him that Mr. Spurgin’s coming near her triggered them. Mr. Maestas “tried
to put something into place” to keep Mr. Spurgin from coming near her, but
Mr. Spurgin nevertheless approached her desk again on one occasion. Id. Ms.
Murphy took medical leave before eventually resigning.
3 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 4
The district court construed Ms. Murphy’s amended complaint to raise four
claims: (1) race and sex discrimination under Title VII, (2) hostile work environment
under Title VII, (3) failure to accommodate under the Rehabilitation Act, and
(4) hostile work environment under the Rehabilitation Act. The court dismissed each
claim.
II. Discussion
We review the district court’s decision de novo. See Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Ms. Murphy alleges facts in her
appellate briefing that she did not include in her amended complaint. In reviewing
the district court’s decision, we consider only those facts alleged in the amended
complaint. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995).
A. Title VII Discrimination
Title VII prohibits employers from discriminating against individuals based on
race and sex. See 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove a violation of that
prohibition either through direct evidence of discrimination or through the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Khalik, 671 F.3d at 1192. To make a prima facie case of
discrimination—shifting the burden to the defendant to articulate a legitimate,
nondiscriminatory reason for the challenged action—a plaintiff must show (1) she is
a member of a protected class, and (2) she suffered an adverse employment action
that (3) occurred under circumstances giving rise to an inference of discrimination.
See Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015).
4 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 5
The district court concluded that Ms. Murphy failed to allege either direct
evidence of discrimination or facts suggesting that the defendants took any action
against her based on her race or sex. We agree. Although Ms. Murphy alleged that
Mr. Spurgin and Ms. Robbins harassed her, she failed to describe the alleged
harassment itself or the circumstances surrounding it. She did allege that a white
woman complained about “the same type of harassment.” R. at 117. But that
allegation works against an inference that the harassment was based on
Ms. Murphy’s race. Although she argues that management took the white woman’s
complaint seriously but not hers, her complaint lacks factual allegations that would
support such a conclusion. She alleged that management immediately came to the
work area to intervene in response to the white woman’s complaint. Yet she did not
identify what specific actions were taken to intervene. Moreover, she alleged that in
response to her own harassment complaints, management moved her workstation and
decided that her alleged harassers “were to stay away from” her. R. at 116.
B. Title VII Hostile Work Environment
To state a Title VII hostile-work-environment claim, a plaintiff must allege
that (1) she belongs to a protected class; (2) she received unwelcome harassment;
(3) the harassment was based on a protected characteristic; and (4) the harassment
was so severe or pervasive that it altered a term, condition, or privilege of
employment and created an abusive environment. See Young v. Colo. Dep’t of Corr.,
94 F.4th 1242, 1249 (10th Cir. 2024).
5 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 6
The district court concluded that Ms. Murphy failed to offer facts suggesting
that the alleged harassment against her had anything to do with her race or sex. For
the same reasons outlined in the previous section, we agree.
C. Rehabilitation Act Failure to Accommodate
“The definition of disability discrimination in federal law includes ‘not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability.’” Hampton v. Utah Dep’t of Corr.,
87 F.4th 1183, 1191 (10th Cir. 2023) (quoting 42 U.S.C. § 12112(b)(5)(A)). “To
state a claim for failure to accommodate under the Rehabilitation Act, [a plaintiff]
must show that [s]he (1) is disabled, (2) is otherwise qualified, and (3) requested a
plausibly reasonable accommodation.” Brown v. Austin, 13 F.4th 1079, 1084–85
(10th Cir. 2021) (footnote and internal quotation marks omitted).
The district court concluded that Ms. Murphy failed to allege facts supporting
an inference that she had been denied a requested reasonable accommodation. The
court noted that although Ms. Murphy claimed to have told Mr. Maestas about her
symptoms and that Mr. Spurgin triggered them, she never alleged that she requested a
specific accommodation for her posttraumatic stress disorder. And in any event, the
court found, Mr. Maestas tried to accommodate Ms. Murphy’s concerns by taking
steps to stop Mr. Spurgin from coming near her workstation. In response to Ms.
Murphy’s claim that Mr. Maestas’s efforts were ineffective, the court noted that her
complaint alleged only a single instance in which Mr. Spurgin approached her desk in
the months following Mr. Maestas’s action. In any event, the court concluded, Ms.
6 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 7
Murphy did not identify a specific accommodation that had been requested or denied.
We see no error in the district court’s analysis.
Ms. Murphy makes new factual allegations supporting this claim on appeal,
asserting that Mr. Maestas denied her request to work from home. We will not
consider these new factual allegations because we must limit our review to the
allegations in the complaint. See Jojola, 55 F.3d at 494.
D. Rehabilitation Act Hostile Work Environment
To prevail on a hostile-work-environment claim under the Rehabilitation Act,
a plaintiff must show that her “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.”
Williams v. FedEx Corp. Servs., 849 F.3d 889, 897 (10th Cir. 2017) (brackets and
internal quotation marks omitted) (discussing claims under the Americans with
Disabilities Act); see also Cline v. Clinical Perfusion Sys., Inc., 92 F.4th 926, 931
(10th Cir. 2024) (recognizing that cases under both the Rehabilitation Act and the
Americans with Disabilities Act inform the analysis of a claim under the
Rehabilitation Act). She must also show that the offending conduct occurred because
of her disability. See Williams, 849 F.3d at 897–98.
The district court concluded that Ms. Murphy’s allegations did not support a
plausible inference that the alleged harassment she suffered was based on a disability.
We agree. After all, Ms. Murphy’s complaint suggests that her disability
7 Appellate Case: 23-1394 Document: 010111081208 Date Filed: 07/18/2024 Page: 8
(posttraumatic stress disorder)2 was the result—not the cause—of the alleged
harassment she suffered. Timing aside, Ms. Murphy’s complaint alleges no facts
suggesting any mistreatment she received was because of a disability.
III. Disposition
We affirm the district court’s judgment. We grant Ms. Murphy’s motion for
leave to proceed without prepaying costs or fees.
Entered for the Court
Harris L Hartz Circuit Judge
2 We assume, as did the district court, that Ms. Murphy sufficiently alleged a disability. 8