F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 10, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
OLIVER TAPIA,
Plaintiff-Appellant,
v. No. 05-2028
(D.C. No. 03-0378 MV/WDS)
CITY OF ALBUQUERQUE, (D. N.M.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Oliver Tapia sued his employer, the City of Albuquerque, under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, alleging that he was
retaliated against for exercising his rights under Title VII. The district court
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
granted the City’s motion for summary judgment, holding that Tapia had not
presented a prima facie case of retaliation. We exercise jurisdiction under
28 U.S.C. § 1291, and affirm.
I. Background
Tapia began working for the City in 1987. During the relevant time, from
April 2000 until August 2002, Aplt. Br. at 7, he worked for the Public Works
Department as a field collector, turning on and off water connections and
investigating illegal water usage. Tapia’s direct supervisors were first Tina
Archuleta and later Barbara Romero. They in turn reported to Sheron Matson,
Manager of Customer Services for the Public Works Department.
Sometime in 2001, Tapia reported to his union that he was subjected to
harassment and discrimination. In a letter sent to Matson by the union on August
28, 2001, which followed up on an August 17 meeting, the union representative
set forth Tapia’s complaints that he was treated unfairly, he was required to
adhere to certain policies and job requirements that other employees in similar
jobs did not have to adhere to, and he was monitored. Aplee. Supp. App. at 45.
The letter also stated that if Tapia continued to be monitored and required to
perform additional duties, the union would file a formal grievance. After she
received this letter, Matson asked for more specific information, but she received
-2-
none. Id. at 158-59. She did not alter her management of Tapia. Id. at 159.
No formal grievance was ever filed.
From September 14, 2001, to November 14, 2001, Tapia took Family and
Medical Leave Act (FMLA) leave for work-related depression and stress. Before
returning to work, he requested a transfer due to conflicts with Archuleta and
Matson. In a memorandum dated November 26, 2001, LaVerne Armijo, a City
Labor Relations Officer, stated that she had told Tapia in a November 6 meeting
that she could not approve a transfer for three reasons: (1) a transfer was not
available because of a hiring freeze; (2) the recent change in administrations after
the November elections; and (3) Tapia’s reason—his dislike of Matson and
Archuleta—was not a favored basis for a transfer. Aplt. App. at 113. The
memorandum also noted that when Armijo told Tapia that it would be another
month before she could finally determine if he could be transferred, he responded
that if she put him back in his same job, he was afraid he would “knock her
[meaning either Archuleta’s or Matson’s] head off.” Id. Armijo warned him that
this was a serious threat.
On November 19, 2001, Tapia filed a complaint with the Equal
Employment Opportunity Commission (EEOC) asserting that he had been
retaliated against and the retaliation consisted of Matson watching his work more
closely than she watched the work of others. On December 4, the City received
-3-
notice of the charge. That same day, Matson, who had no knowledge of the
EEOC complaint, 1
gave Tapia a letter of instruction directing him not to make
verbal threats to employees. The letter warned that future disciplinary action was
possible if Tapia made another threat. Id. at 112. The Public Works Department
received notice of the EEOC charge on December 6.
In a July 23, 2002 letter, Tapia again requested a transfer based on
perceived problems with Matson. Accordingly, on August 12, he was transferred
to a different location within the same department, reporting to a different
supervisor. In 2003, Tapia applied for a new position as a utility technician.
Although he was selected for the job by a committee, the Department Director,
who had final hiring authority, chose other persons he deemed more qualified for
the job.
Also in 2003, Tapia filed this Title VII action asserting retaliation. In
response to the City’s motion for summary judgment, Tapia alleged that he
suffered five separate adverse employment actions: (1) he was required to
perform jobs that other employees were not required to perform; (2) unlike other
1
Tapia testified at his deposition that he did not tell Matson that he had filed
an EEOC complaint, and he did not know when she learned of it. Neither the
pages of Matson’s deposition included in the parties’ appendices nor her affidavit
indicate that she knew of the EEOC complaint. Although the record shows that
Matson knew about the union letter, the record does not show that she had
knowledge of Tapia’s EEOC activity.
-4-
employees, his supervisors monitored him in a harassing and retaliatory way;
(3) he was disciplined by the letter of instruction; (4) he was subjected to
continuing harassment after he returned to work following his FMLA absence,
filed his EEOC complaint and made other informal complaints to his supervisors;
and (5) he was denied a transfer to the utility technician position for which he was
selected and qualified.
The district court granted the City’s motion for summary judgment, finding
that Tapia failed to present a prima facie case of retaliation. The court found that
only the second claim—that he was monitored in a harassing manner by his
supervisors—could constitute an adverse employment action, and only if the
harassment was sufficiently severe. But the court also found that Tapia failed to
show a causal link between his supervisor’s behavior and his protected activities.
II. Analysis
We review the district court’s grant of summary judgment de novo, viewing
the record evidence in the light most favorable to Tapia. See Sealock v.
Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). “We affirm unless [he] points
to evidence in the record establishing a genuine issue of material fact.” Wells v.
Colo. Dep’t of Transp. , 325 F.3d 1205, 1209 (10th Cir. 2003) (citing
Fed. R. Civ. P. 56(c)). He cannot create a genuine issue of material fact with
-5-
unsupported, conclusory allegations. Annett v. Univ. of Kan. , 371 F.3d 1233,
1237 (10th Cir. 2004).
Title VII prohibits retaliation against an employee who opposes any
unlawful employment practices or files a charge with the EEOC. See 42 U.S.C.
§ 2000e-3(a). Because there is no direct evidence of retaliation in this case,
McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), provides the proper
three-step framework for analysis. See Annett , 371 F.3d at 1237. Under that
framework, an employee must first present a prima facie case of retaliation. Id.
If the employee does so, the burden then shifts to the employer “to produce a
legitimate, nondiscriminatory justification for taking the disputed employment
action.” Id. If the employer satisfies this burden, the employee then must provide
evidence that the employer’s proffered reasons are merely a pretext for
discrimination. Id. Like the district court, we conclude that Tapia failed to show
a prima facie case of retaliation. Thus, we do not address the last two steps of the
analysis.
For a prima facie case of retaliation, an employee must prove that (1) he
“engaged in protected opposition to discrimination;” (2) he suffered “an adverse
employment action”; and (3) “there exists a causal connection between the
protected activity and the adverse action.” Stover v. Martinez , 382 F.3d 1064,
1071 (10th Cir. 2004). It is undisputed that Tapia met the first requirement.
-6-
The City does not dispute that Title VII protected Tapia against discrimination for
filing an informal union grievance in August 2001 and an EEOC charge in
November 2001.
The second prima-facie case requirement is that Tapia prove that he
suffered an adverse employment action. “An adverse employment action
constitutes ‘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.’” Annett , 371 F.3d at 1237
(quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998)). Although
what constitutes an “adverse employment action” is inherently a fluid and
fact-based consideration, “a mere inconvenience or an alteration of job
responsibilities will not suffice.” Id. at 1239 (quotations omitted).
On appeal, Tapia argues that the district court incorrectly found only one
adverse employment action—the allegedly harassing behavior of his supervisors
of following him and monitoring him while he was working. He contends he also
suffered two other adverse employment actions: (1) when he received the letter
of instruction and (2) when he did not receive a transfer. The City argues that
none of these three constitutes an adverse employment action.
We agree with the district court that sufficiently severe harassing,
following, and monitoring of an employee could create an adverse employment
-7-
action. 2 Cf. Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1264 (10th Cir.
1998) (recognizing that co-worker hostility or retaliatory harassment if
sufficiently severe may be adverse employment action). In this case, however, the
evidence of Tapia’s being followed consists only of his own uncorroborated
deposition testimony and nothing else. He asserts, for example, that Matson,
Romero, or Archuleta followed him, although this occurred both before and after
he engaged in protected activity. But Matson, Romero, and Archuleta deny his
assertions. And none of Tapia’s co-workers provided testimony to support these
allegations. In short, no evidence in the record, apart from Tapia’s deposition
testimony, supports his claim. Tapia’s unsupported assertions, however, “carry no
probative weight in summary judgment proceedings.” See Bones v. Honeywell
Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). His mere subjective belief of
discrimination was insufficient to preclude the grant of summary judgment.
Stover , 382 F.3d at 1074 n.2; see also Miller v. Auto. Club of N.M., Inc. , 420 F.3d
1098, 1122 (10th Cir. 2005) (recognizing plaintiff’s own suspicions are
insufficient to establish prima facie case).
Also, Tapia asserts that Matson monitored his work, and that the
monitoring humiliated him and caused him stress. Some deposition testimony
2
While Tapia mentions this alleged adverse employment action in his
appellate brief, his actual argument focuses only on the letter of instruction and
requests for a transfer.
-8-
supports Tapia’s assertion that Matson asked other employees to monitor his
work. Gerald Chavez, for example, testified that Matson had asked him a few
times to check to see if water could be turned off when Tapia indicated that it
could not be. Aplt. App. at 117. Another co-worker, Elias Sanchez, also did so
on two occasions. Id. In addition, Loretta Rael—a co-worker—testified at her
deposition that Matson periodically checked Tapia’s work logs and made
photocopies of them. Id. at 124. Also, Rael stated that Matson timed how long it
took Tapia to get to a job and to complete it. Id.
While the record is clear that Matson did monitor Tapia’s work, the record
is equally clear that Tapia did not suffer adverse employment action due to the
monitoring. No change in his employment status occurred: his job, pay and
benefits at all times remained the same. See Annett , 371 F.3d at 1237 (requiring
significant change in employment status for adverse employment action). Thus,
under the circumstances presented here, the district court incorrectly concluded
the harassing, following, and monitoring constituted an adverse employment
action.
Next, Tapia argues that the letter of instruction constituted an adverse
employment action by the City. He contends that the letter “[wa]s a per se act of
harm to [his] reputation, humiliating, and dramatically adverse.” Aplt. Br. at 18.
He further asserts that the letter resides in his personnel file and could adversely
-9-
affect his future employment. He characterizes the letter as discipline imposed
within two weeks of his filing an EEOC charge. 3
It is true that warning letters and reprimands can be adverse employment
actions. Medina v. Income Support Div. , 413 F.3d 1131, 1137 (10th Cir. 2005).
“A reprimand, however, will only constitute an adverse employment action if it
adversely affects the terms and conditions of the plaintiff’s employment—for
example, if it affects the likelihood that the plaintiff will be terminated,
undermines the plaintiff’s current position, or affects the plaintiff’s future
employment opportunities.” See id.
Like the district court, we cannot conclude that the letter of instruction
Tapia received constituted adverse employment action. The letter was not
disciplinary. It did not affect his pay, benefits, or employment status. Cf. Heno v.
Sprint/United Mgmt. Co. , 208 F.3d 847, 857 (10th Cir. 2000) (finding no adverse
action under similar circumstances). Indeed, he continued to work for the Public
Works Department, and the City subsequently approved his transfer to another
job, just as he requested. The fact that the letter indicates that Tapia could be
disciplined for a future threat is not enough to make the letter itself disciplinary
3
Tapia maintains that his comment about knocking a superior’s head off was
not a verbal threat and the perception that it was a threat was flawed. Regardless
of whether he intended to threaten anyone, his comment was reasonably perceived
to be a threat.
-10-
action. Cf. Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998) (deciding
that unrealized threats do not rise to level of actionable retaliation). Finally, the
Public Works Department did not even receive notice of the EEOC action until
two days after Tapia received the letter.
Third, Tapia argues that the failure to transfer him to another job both in
2001 and after he filed his EEOC complaint and made other informal complaints
were adverse employment actions. He contends the City delayed his transfer
because he had made complaints. Also, he contends that the failure to transfer
him resulted in a deterioration of his health and caused him to be “humiliated and
damaged.” Aplt. Br. at 20.
To support his argument, Tapia points to a letter he wrote to Ted Asbury,
the head of the Public Works Department on July 23, 2002, requesting a transfer
because he was harassed, monitored and discriminated against for no good reason.
The City, in fact, approved a transfer in response to this letter. Nothing in the
record indicates that Tapia was denied a transfer after he sought a job for which
he was qualified and for which the City was seeking applicants. See Amro v.
Boeing Co. , 232 F.3d 790, 797 (10th Cir. 2000).
The City’s failure to select Tapia for the utility technician position also was
not an adverse employment action, because, as the district court found, the
position initially would have resulted in an immediate demotion for Tapia. Any
-11-
future opportunities related to that job could not create an adverse employment
action because those opportunities depended upon his completing certification and
passing through training levels over a two to three year period. 4
Because Tapia has failed to establish an adverse employment action, he
cannot establish a prima facie case of retaliation. We therefore conclude that the
district court correctly granted summary judgment in favor of the City.
The judgment of the district court is AFFIRMED. 5
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
4
Tapia does not continue to assert on appeal that the alleged change in job
duties or the alleged continuing pattern of harassment after he returned to work
from his FMLA absence were adverse employment actions. We conclude these
issues are therefore waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d
979, 984 n.7 (10th Cir. 1994) (deciding that issue not raised in opening appellate
brief is waived). Even if they were not waived, we conclude that the district court
correctly decided that they did not constitute adverse employment actions.
5
The City argues that Tapia included documents in his appendix that were
not a part of the district court record. These documents are the EEOC
determination and the right to sue letter. Under Fed. R. App. P. 30(a)(1)(D),
these documents should not have been included in the appendix.
-12-