Garcia v. Recondo Technology

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
THERESA GARCIA,
Plaintiff - Appellant,
v. No. 17-1221
(D.C. No. 1:16-CV-01386-RBJ)
RECONDO TECHNOLOGY, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
Representing herself, Theresa Garcia appeals from the district court’s entry of
summary judgment in favor of her former employer, Recondo Technology, on her
claims of sexual discrimination and retaliation under Title VII of the Civil Rights Act
of 1964, see 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). Exercising jurisdiction under
28 U.S.C. § 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND
The parties are familiar with the facts, so we provide only a brief summary.
Garcia alleged that three Recondo employees sexually harassed her, creating a hostile
work environment, and that Recondo didn’t adequately address the situation. She
claimed one employee, Frank Delgado, made lewd comments to her for several
months. Garcia reported Delgado to Recondo’s human resources department after
she caught him peeking at her through a hole in her cubicle and telling her she looked
nice that day. Garcia also contended that a co-worker with a cubicle next to hers
frequently stared at her and told her she was beautiful, and that she overheard a
temporary male worker make lewd comments to another male co-worker. Garcia
further alleged that after she filed a charge about the harassment with the Equal
Employment Opportunity Commission (EEOC), Recondo retaliated against her by
altering her pay, denying her opportunities to work overtime or work from home,
giving her a smaller raise than another co-worker, withholding a health-insurance
rebate, and terminating her employment.
The parties filed cross-motions for summary judgment. The district court
denied Garcia’s motion and granted Recondo’s motion. The court assumed Garcia
had been sexually harassed and that the harassment was severe enough to create a
hostile work environment but concluded that no reasonable juror could find Recondo
liable for the harassment. In support, the court relied on evidence it considered
undisputed that Garcia’s co-workers, not her supervisors, committed the harassment,
and that Recondo took prompt and effective remedial action each time Garcia
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reported the sexual harassment. Therefore, the court concluded, Garcia couldn’t
establish a prima facie hostile-environment case.
Turning to Garcia’s retaliation claim, the district court first concluded that in
her EEOC charge, Garcia failed to raise the denial of overtime pay or the lack of a
raise commensurate with her co-worker. The court therefore dismissed those aspects
of the claim without prejudice for failure to exhaust administrative remedies.
The court next assumed that Garcia established a prima facie case of
retaliation as to the other aspects of the retaliation claim but determined that no
reasonable juror could find Recondo’s explanations pretextual, largely because
Garcia provided only conjecture instead of evidence of pretext. In the partial
alternative, the court concluded that the termination portion of Garcia’s retaliation
claim failed because Garcia couldn’t establish the causation element of her prima
facie case; the supervisor who allegedly retaliated against her, Michele Hutchins,
wasn’t the Recondo employee who terminated her employment, and the termination
occurred roughly eight months after Garcia reported the discrimination.
II. DISCUSSION
We review an order granting summary judgment de novo, “applying the same
standards that the district court should have applied.” Fields v. City of Tulsa,
753 F.3d 1000, 1008 (10th Cir. 2014) (internal quotation marks omitted). A “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). “[W]e examine the record and all reasonable inferences that
3
might be drawn from it in the light most favorable to the nonmoving party.” Fields,
753 F.3d at 1009 (internal quotation marks omitted).
Because Garcia represents herself, we construe her filings liberally.
Nevertheless, pro se parties must follow the same procedural rules governing other
litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). Federal Rule of Appellate Procedure 28(a) requires an appellant’s brief to
include, among other things, an “argument, which must contain . . . appellant’s
contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Fed. R. App. P. 28(a)(8). Importantly, Rule 28
applies equally to pro se litigants. Thus, Garcia’s brief must contain more than
generalized assertions of error and must include citations to supporting authority.
“When a pro se litigant fails to comply with that rule, we cannot fill the void by
crafting arguments and performing the necessary legal research.” Garrett, 425 F.3d
at 841 (alteration and internal quotation marks omitted).
Garcia’s opening brief fails to comply with Rule 28(a)(8). Most of her
arguments are conclusory, and the only citation to the record she supplies is in
support of her contention that the district court erred by changing one of Recondo’s
affirmative defenses, see Aplt. Opening Br. at 8 (citing “R.13”). That citation is to a
page in her complaint and offers no readily apparent support for her contention.
Such inadequacies generally disentitle a litigant to review, but we retain discretion to
consider the appeal. Garrett, 425 F.3d at 841. We exercise that discretion here, but
only insofar as Garcia provided record citations in her reply brief, and only to the
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extent those citations provide support for intelligible, nonconclusory arguments for
reversal that she advanced in her opening brief. See Starkey ex rel. A.B. v. Boulder
Cty. Soc. Servs., 569 F.3d 1244, 1259 (10th Cir. 2009) (explaining that refusal to
consider arguments or evidence supporting an argument first advanced in an
appellate reply brief “protects us from publishing an erroneous opinion because we
did not have the benefit of the appellee’s response” (internal quotation marks
omitted)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)
(“Arguments inadequately briefed in the opening brief are waived, and bald
assertions in briefs that there are genuine issues of material fact are insufficient to
merit reversal of summary judgment.” (citations omitted)).
Only two lines of argument fall within those parameters. The first of these
stems from Garcia’s contention that Delgado received a management bonus soon
after she complained to Recondo about his behavior. But the decision to give
Delgado a bonus in the wake of Garcia’s complaint doesn’t suggest that Recondo
failed to effectively remediate the harassment. As the district court explained, it is
undisputed that (1) Recondo discussed the situation with Delgado; (2) Delgado
agreed that his conduct could be considered inappropriate and that he would change
it; and (3) Garcia didn’t complain of any further harassment by him. See R., Vol. II
at 207, 214–15.
Garcia has provided no reasoned argument that the district court erred in that
conclusion. Instead, Garcia appears to complain that Recondo gave Delgado a bonus
instead of taking more severe steps in disciplining him. But a company is permitted
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to exercise its judgment in deciding the severity of discipline to impose upon an
employee for various types of conduct. Kendrick v. Penske Tranps. Servs., Inc.,
220 F.3d 1220, 1233 (10th Cir. 2000). Our role “is . . . not to act as a super
personnel department that second guesses employers’ business judgments.” Id.
(internal quotation marks omitted).
Relatedly, we will liberally construe Garcia’s argument regarding the bonus to
include the contention that Delgado was in fact a manager, an argument Recondo
addressed in its response brief and for which Garcia has provided supporting record
citations in her reply brief. Whether Delgado was a co-worker, as the district court
concluded, or a supervisor may affect the analysis regarding Recondo’s liability. As
the Supreme Court reiterated in Vance v. Ball State University, “[i]f the harassing
employee is the victim’s co-worker, the employer is liable only if it was negligent in
controlling working conditions.” 133 S. Ct. 2434, 2439 (2013). Different rules
apply, however, when the harasser is a supervisor:
If the supervisor’s harassment culminates in a tangible employment action,
the employer is strictly liable. But if no tangible employment action is
taken, the employer may escape liability by establishing, as an affirmative
defense, that (1) the employer exercised reasonable care to prevent and
correct any harassing behavior and (2) that the plaintiff unreasonably failed
to take advantage of the preventive or corrective opportunities that the
employer provided.
Id. Significantly, Vance held “that an employee is a ‘supervisor’ for purposes of [the
employer’s] vicarious liability under Title VII if he or she is empowered by the
employer to take tangible employment actions against the victim.” Id. (emphasis
added).
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As noted, the district court applied the negligence standard based on its view
that the undisputed evidence showed Delgado wasn’t such a supervisor. In
challenging that conclusion, Garcia first points to Exhibit 1 of her motion for
summary judgment, but we don’t see in that exhibit any information relevant to
whether Delgado was a manager. See R., Vol. I at 268–69. She also relies on a
position statement Recondo filed in response to Garcia’s EEOC charge identifying
Delgado as a “Data Analytics Reports Manager,” id. at 33 (emphasis added).
Assuming the position statement shows a genuine factual dispute whether
Delgado was in fact some sort of manager, it doesn’t create a genuine factual dispute
regarding the key inquiry—whether Delgado was “empowered by [Recondo] to take
tangible employment actions against [Garcia],” Vance, 133 S. Ct. at 2439 (emphasis
added). Garcia hasn’t directed us to any evidence that Delgado had such power, and
the district court relied on the undisputed affidavit of a human resources
administrator explaining that “Delgado was a Business Analyst and worked in the
Data Analytics Department,” which had different management personnel than the
department where Garcia worked, and “[he] had no hiring or firing authority over any
employee,” including Garcia, and “no power to . . . recommend or substantially
influence such actions,” R., Vol. II at 146–47. The district court therefore properly
considered Recondo’s liability under the negligence standard applicable to
harassment by a co-worker.
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Garcia’s next argument concerns the altered-pay aspect of her retaliation
claim. See Aplt. Opening Br. at 12–13.1 In her reply brief, Garcia cites two exhibits
attached to her motion for summary judgment in support of her claim that her
supervisor, Hutchins, shorted her paychecks in various ways in retaliation for her
complaint about Delgado. See Aplt. Reply Br. at 15. Only one of those exhibits is
relevant, comprising multiple emails concerning issues with her pay on numerous
occasions and Garcia’s summary of those emails, see R., Vol. I at 276–327.2 The
district court considered those emails along with affidavits from Recondo employees,
including Hutchins, and determined that together, the evidence showed legitimate
reasons for the pay issues—difficulties Hutchins had in attempting to correct what
she perceived to be problems on Garcia’s timesheets, and miscommunications
1
Garcia hasn’t challenged the district court’s conclusion that she failed to
exhaust two aspects of her retaliation claim (the denial of overtime opportunities and
the lack of a raise commensurate with a co-worker). Nor has she challenged the
district court’s conclusion that she failed to establish the termination portion of that
claim because she couldn’t establish the causation element of her prima facie case
given that Hutchins wasn’t the employee who terminated Garcia’s employment.
Additionally, she hasn’t advanced any nonconclusory arguments that the district
court erred in considering it undisputed that the change in her ability to work from
home was because Recondo had not yet completed establishing a company policy; at
the relevant time, Hutchins was only permitting employees living outside the Denver
metro area to telework, and Garcia lived within the metro area. Finally, Garcia
makes only a conclusory argument regarding Recondo’s refusal to pay her a health
insurance rebate, suggesting that the district court appeared biased towards her and
“creat[ed]evidence” allowing Recondo to keep her United Health rebate. Aplt.
Opening Br. at 8. Accordingly, we limit our consideration of her retaliation
arguments to the altered-pay issue.
2
The other exhibit consists of multiple emails about overtime and teleworking,
see id. at 333–37, and therefore isn’t relevant to the altered-pay issue.
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between Garcia and Hutchins that were promptly remedied. The district court
observed that Garcia provided only conjecture that those rationales were pretextual.
On appeal, Garcia hasn’t explained how the exhibits she points us to support her
argument that Recondo’s explanation for the pay issues was a pretext for unlawful
retaliation. And after reviewing them, we can’t say the district court erred in its
handling of this portion of Garcia’s retaliation claim. At most, the emails suggest
legitimate procedural errors in Hutchins’s handling of Garcia’s time records that
were corrected when Garcia brought them to the attention of Hutchins or other
Recondo employees.
III. CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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