Tracy v. Vail Resorts

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 1, 2022
• Docket: 21-4145
• Status: Unpublished

Opinion

Appellate Case: 21-4145 Document: 010110761353 Date Filed: 11/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MARK CHRISTOPHER TRACY,

Plaintiff - Appellant,

v. No. 21-4145 (D.C. No. 2:21-CV-00250-TC) VAIL RESORTS, INC., d/b/a Park City (D. Utah) Mountain Resort, DOES 1-20,

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges. _________________________________

Plaintiff-appellant Mark Tracy, proceeding pro se, appeals the district court’s

order dismissing his lawsuit against Vail Resorts, Inc., d/b/a Park City Mountain

Resort (Vail) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim. Exercising jurisdiction pursuant to 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 In both the dismissal order and the judgment, the district court stated it was dismissing “the case.” R. at 69, 71. Neither mentioned the Doe defendants, but unnamed defendants who are not served are not parties to the case and do not prevent Appellate Case: 21-4145 Document: 010110761353 Date Filed: 11/01/2022 Page: 2

Background

Because we are reviewing a dismissal for failure to state a claim, we assume

the truth of the following facts taken from Mr. Tracy’s complaint. See Brooks v.

Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir.), cert. denied, 142 S. Ct. 477

(2021).

Mr. Tracy was employed as a Public Safety Officer at Park City Mountain

Resort.2 In January 2020, he started documenting unsafe and hazardous working

conditions at the Resort, including (1) illicit drug use by employees on company

property; (2) “open and accessible alcoholic beverages” on company property after

hours, R. at 10; and (3) employees’ “improper operation of heavy machinery during

severe winter conditions near pedestrians during hours of darkness,” R. at 10-11. He

verbally informed the Resort’s Public Safety Manager (PSM) about these problems

before he started documenting them.

In March 2020, the PSM informed Mr. Tracy that his shift that day had been

suspended “due to time discrepancies.” R. at 11 (internal quotation marks omitted).

The next day, she told him he had been “let go for sitting on furniture in the hotel

lobby area” during the overnight shift on an unspecified date. Id. (internal quotation

marks omitted).

a dismissal order on all other claims from being final and appealable. See Raiser v. Utah Cnty., 409 F.3d 1243, 1245 n.2 (10th Cir. 2005). 2 In its response brief, Vail indicated that Mr. Tracy’s employer was actually VR CPC Holdings, Inc., which is an indirect subsidiary of Vail. That correction is of no consequence to the issues on appeal. 2 Appellate Case: 21-4145 Document: 010110761353 Date Filed: 11/01/2022 Page: 3

Mr. Tracy filed complaints with the Utah Labor Commission (ULC) and Equal

Employment Opportunity Commission (EEOC). Thereafter, Vail failed to provide

documentation of his termination and would not allow him to recover his personal

property from company property.

Mr. Tracy alleged that Vail’s adverse employment decisions were based on his

having “exercised his rights under Title VII by documenting hazardous working

conditions and imminent threats of grave bodily harm.” R. at 9. He asserted only

one claim for relief—that Vail violated Title VII by suspending and firing him “in

retaliation for exercising his federally protected rights.” R. at 12. He did not

separately plead a discrimination claim, but in the opening paragraph of the

complaint he alleged that Vail discriminated against him by firing him for that

reason, and later in the complaint he alleged that the PSM did not explain why “other

employees not of the same protected class” had not been terminated for the same

reason. R. at 11.

Vail moved to dismiss the action under Rule 12(b)(6) for failure to state a

claim. As for the retaliation claim, it argued that whistleblower activity unrelated to

employment discrimination is not protected activity under Title VII. And it argued

that to the extent Mr. Tracy also intended to assert a discrimination claim, the claim

failed because he alleged no facts suggesting that he was a member of a protected

class and that Vail treated him and similarly-situated employees who were not in the

same class differently.

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In his opposition to the motion, Mr. Tracy explained that the protected

activities underpinning his retaliation claim were his exercise of his constitutional

right to free speech, his “internal complaint[s]” to management, R. at 28, and his

having filed complaints with the ULC and EEOC after his termination. He further

explained that his discrimination claim was based on the fact that, assuming Vail

fired him for “sitting on company furniture,” it failed “to take similar adverse action

against other” employees for the same conduct. R. at 30 (internal quotation marks

omitted). He indicated that documents he filed with the ULC established that he was

over forty years old and that Vail did not “take corrective action against another”

employee “who was a different race than Mr. Tracy and not [a] member of the same

protected class.” Id.3

A magistrate judge issued a report and recommendation (R&R) that the district

court grant the motion to dismiss. Mr. Tracy timely objected, but on de novo review,

the district court overruled his objections, adopted the magistrate judge’s

recommendation, granted the motion, and dismissed the case with prejudice.

Specifically, the court held that his retaliation claim failed because reporting

hazardous working conditions is not a protected activity under Title VII, and his

discrimination claim failed because “his status as an older worker ha[d] no bearing

3 Mr. Tracy also maintained that his complaint stated a plausible “supplemental state law claim for unlawful conversion” based on his allegations that Vail “prohibited [him] from returning to company property to recover expensive personal items.” R. at 30 (capitalization omitted). He did not pursue this argument on appeal, so we do not address it.

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on his complaint” because he alleged that Vail fired him for reporting hazardous

working conditions, not because of his age. R. at 69. This appeal followed.

Discussion

Initially, we note that because Mr. Tracy is proceeding pro se, we construe his

filings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). We thus

make some allowances for deficiencies, such as unfamiliarity with pleading

requirements, failure to cite appropriate legal authority, and confusion of legal

theories. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). But we “cannot take on the responsibility of serving as [his] attorney in

constructing arguments and searching the record.” Id. And the liberal-construction

rule does not relieve him of his burden to plead a legally cognizable claim. Hall,

935 F.2d at 1110.

1. Legal Standards

We review dismissals under Rule 12(b)(6) for failure to state a claim de novo,

applying the same standards that applied in the district court. See Cnty. of Santa Fe

v. Pub. Serv. Co., 311 F.3d 1031, 1034 (10th Cir. 2002). To avoid dismissal,

“a complaint must contain enough allegations of fact, taken as true, to state a claim to

relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190

(10th Cir. 2012) (internal quotation marks omitted). In conducting our review, we

accept all well-pleaded facts as true, view them in the light most favorable to the

plaintiff, and draw all reasonable inferences in his favor. Brooks, 985 F.3d at 1281.

We “disregard conclusory statements and look only to whether the remaining, factual

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allegations plausibly suggest the defendant is liable.” Khalik, 671 F.3d at 1191. Our

duty is to “determine whether the complaint sufficiently alleges facts supporting all

the elements necessary to establish an entitlement to relief under the legal theory

proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

Title VII forbids employment discrimination on the basis of race, color,

religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Mr. Tracy did not

present any direct evidence of discrimination, so we analyze his claim under the

three-step burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973). Khalik, 671 F.3d at 1192.

Under McDonnell Douglas, the plaintiff carries his initial burden of proving a

prima facie case of discrimination by showing that he (1) is a member of a protected

class, (2) suffered an adverse employment action, (3) was qualified for the position at

issue, and (4) was treated less favorably than others not in the protected class.

Khalik, 671 F.3d at 1192. The burden then shifts to the employer to offer

“a legitimate, non-discriminatory reason for the adverse employment action.” Id.

If the employer makes that showing, the burden shifts back to the plaintiff to show

that his “protected status was a determinative factor” in the employer’s decision or

that the employer’s explanation is pretextual. Id.

Title VII also makes it unlawful for an employer to retaliate against an

employee who “opposed any practice made an unlawful employment practice” by

Title VII. See 42 U.S.C. § 2000e–3(a). Because Mr. Tracy presented no direct

evidence of retaliation, we again analyze his claim under the McDonnell Douglas

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framework. A plaintiff meets his initial burden of establishing a prima facie case of

retaliation by showing that (1) he engaged in protected opposition to discrimination;

(2) he suffered an adverse action that a reasonable employee would have found

material; and (3) there is a causal nexus between his protected activity and the

employer’s adverse action. Khalik, 671 F.3d at 1193. To qualify as “protected

opposition” the employee must have an objectively reasonable and good-faith belief

that the employer engaged in a practice made unlawful by Title VII. See Crumpacker

v. Kan. Dep’t of Hum. Res., 338 F.3d 1163, 1171 (10th Cir. 2003); see also Hansen v.

SkyWest Airlines, 844 F.3d 914, 926 (10th Cir. 2016) (explaining that Title VII

protects an employee who reasonably believes he is opposing in unlawful

employment discrimination, whether or not an actual violation occurred).

At the pleading stage, the plaintiff is not required to establish a full-blown

prima facie case of discrimination or retaliation—he is only required to allege facts

sufficient to set forth a plausible claim. Khalik, 671 F.3d at 1193. Thus, to survive

the motion to dismiss, Mr. Tracy’s complaint only needed to allege facts linking

Vail’s employment decisions to a discriminatory or retaliatory motive, see id.

at 1194, and “giv[ing] rise to a reasonable inference of discrimination” or retaliation,

Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th Cir. 2019).

2. Application

Mr. Tracy did not meet his initial burden for a discrimination claim. Title VII

prohibits employment discrimination based on five protected classes—race, color,

religion, sex, and national origin. 42 U.S.C. § 2000e-2(a)(1); see Khalik, 671 F.3d

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at 1192. It does not prohibit other forms of unfair or discriminatory conduct.

Mr. Tracy did not allege in the complaint that he was a member of one of those

protected classes, much less that Vail terminated him on that basis. Although he

indicated in his opposition to the motion to dismiss that he is over forty and that Vail

did not take corrective action against an unnamed non-white employee who also sat

on company furniture, the allegations in the complaint did not establish a link

between either his age or his race and Vail’s employment decisions. He thus failed to

plead a plausible discrimination claim. See Khalik, 671 F.3d at 1193-94. We are not

persuaded otherwise by Mr. Tracy’s criticism of Vail for not providing an

explanation for its handling of other employees’ similar conduct. Because Mr. Tracy

failed to meet his initial burden of establishing a prima facie discrimination case, “his

entire case fail[ed],” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir.

2012), so Vail was not required to offer an explanation, see id. at 506.

Mr. Tracy also did not plead a plausible retaliation claim. Nothing in the

complaint suggested that he opposed illegal discrimination during his employment

with Vail, let alone that Vail fired him in retaliation for doing so. Nevertheless, he

maintains that Vail retaliated against him for engaging in what he claims are three

protected activities: (1) reporting workplace safety concerns to Vail management;

(2) exercising his First Amendment right to free speech; and (3) filing a formal

complaint with the ULC after his termination.

Contrary to Mr. Tracy’s contention, his reports to management of hazardous

working conditions were not protected activity under Title VII. He cited no

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authority, and we are not aware of any, holding that speaking out in opposition to

work conditions that are not tied to discrimination is protected activity under Title

VII. See O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1255 (10th Cir. 2001)

(observing that attorney’s letter to employer accusing it of reassigning plaintiff in

retaliation for filing EEOC discrimination and retaliation claims constituted protected

activity but that a letter “complain[ing] about unfair treatment in general and

express[ing] . . . dissatisfaction . . . that someone else was awarded [a] position” was

not protected conduct under Title VII because it did not “specifically complain about

age discrimination”).

His contention that his reports of unsafe working conditions were a protected

activity under Title VII because he was exercising his First Amendment rights fares

no better. Title VII does not protect against adverse employment decisions based on

an employee’s exercise of his right to free speech. And Mr. Tracy could not assert a

plausible First Amendment retaliation claim against Vail because it is not a public

employer. Cf. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (recognizing that “the

First Amendment protects a public employee’s right, in certain circumstances, to

speak as a citizen addressing matters of public concern.” (emphasis added));

Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir.

2007) (discussing elements of freedom of speech retaliation claim and explaining that

“when government employees speak on matters of public concern, they must face

only those speech restrictions that are necessary for their employers to operate

efficiently and effectively” (emphasis added) (internal quotation marks omitted)).

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Mr. Tracy’s assertion that filing the ULC complaint constituted protected

activity under Title VII also does not save his complaint from dismissal. True, filing

a discrimination or retaliation complaint with the ULC was a protected activity. See

O’Neal, 237 F.3d at 1254-55. But Mr. Tracy filed his ULC complaint long after Vail

terminated him. Accordingly, it was not the impetus for Vail’s adverse employment

decisions and cannot form the basis of a retaliation claim. See McGowan v. City of

Eufala, 472 F.3d 736, 744 (10th Cir. 2006) (discussing the “required link between the

protected activity and subsequent adverse employment action”); cf. O’Neal, 237 F.3d

at 1255 (“Because this adverse action followed the protected conduct by one day,

a causal connection is established.”).

Finally, for the first time in his reply brief, Mr. Tracy contends that his

complaint stated plausible claims (1) under the Age Discrimination in Employment

Act, which makes it unlawful for an employer to take adverse action against an

employee “because of [his] age,” 29 U.S.C. § 623(a); and (2) for “retaliatory action

for reporting criminal activities to police authorities,” Reply Br.at 2. But nothing in

his complaint even hinted at such claims, and he did not raise these issues in district

court, either in his opposition to the motion to dismiss or in his objection to the

magistrate judge’s R&R. We thus decline to address these new arguments. See

Singleton v. Wulff, 428 U.S. 106, 120 (1976) (recognizing that federal appellate

courts generally do “not consider an issue not passed upon below”); Stump v. Gates,

211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordinarily review issues

raised for the first time in a reply brief.”).

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Conclusion

The judgment is affirmed.

Entered for the Court

Joel M. Carson III Circuit Judge