F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 9, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROCHELLE SMITH,
Plaintiff - Appellant, No. 05-2049
v. (D. New Mexico)
EQUAL EMPLOYMENT (D.C. No. CIV-03-465 JP/ACT)
OPPORTUNITY COMMISSION,
United States, Cari M. Dominguez,
Chair,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
Rochelle Smith is a former investigator at the Albuquerque District Office
of the Equal Employment Opportunity Commission (EEOC). She sued the EEOC
on April 16, 2003, in the United States District Court for the District of New
Mexico, claiming violations of Title VII of the Civil Rights Act of 1964 and the
Rehabilitation Act of 1973. She alleged that she was the victim of race
*
This order and judgment is not binding precedent, except under the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.
discrimination, national-origin discrimination, disability discrimination, and
retaliation. The district court entered summary judgment in favor of the EEOC on
all claims. Ms. Smith appeals the judgment and the district court’s denial of her
motion for leave to depose Ida Castro, the former Chair of the EEOC. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Ms. Smith, who is Caucasian, was employed by the Albuquerque office of
the EEOC as an investigator from October 1993 until March 2002. In June 1999
Christella Garcia Alley, an Hispanic woman who had also been an investigator in
the Albuquerque office, was promoted, becoming Ms. Smith’s supervisor.
According to Ms. Smith, after the promotion Ms. Alley subjected Ms. Smith to a
steady stream of race-based harassment. Ms. Alley allegedly told a fellow
supervisor, Patricia Gonzalez-Morrow, that Ms. Smith “‘thought she was better
than Hispanic women in the office,” and “‘that’s the way White women are.’”
Aplt. App. at 255. Ms. Alley also allegedly told Ms. Gonzalez-Morrow on more
than one occasion that she intended to put Ms. Smith “‘in her place,’” id. at 258,
and that Ms. Smith was her former supervisor’s “‘little girl [but s]he’s not going
to be mine,’” id. at 234. Ms. Smith further claims that Ms. Alley often addressed
her as “‘Mi Hita,’” a Spanish term used by elders to address their daughters or
granddaughters. Id. at 300.
-2-
On September 28, 2000, Ms. Alley directed Ms. Smith, who does not speak
Spanish, to conduct an intake interview of two Hispanic men, one of whom did
not speak English. According to Ms. Smith, she did “the best she could to
communicate with them,” but afterwards she dropped some documents on a desk
in the front office and remarked that the task had been “fucking bullshit.” Id. at
214. On September 29, 2000, Ms. Alley issued Ms. Smith a Letter of Warning
(LOW) for her conduct the day before although, according to Ms. Smith, cursing
was common in the office. On October 17, 2000, Ms. Smith filed a union
grievance based on the LOW. The grievance did not allege that she had been
discriminated against. On May 18, 2001, Ms. Smith’s grievance was denied.
In June 2001 Ms. Smith requested and was granted a leave of absence.
Ms. Smith claims that this leave was prompted by the physical and emotional
stress she was experiencing as a result of the harassment at work. Ms. Smith was
on leave from June 21 through August 25, 2001.
On July 25, 2001, while Ms. Smith was on leave, the Albuquerque EEOC
office announced to employees that it would be giving cash and time-off awards
for fiscal year 2001, and informed employees that they could nominate themselves
or any other employee for an award. Ms. Smith was not nominated for an award,
although she had received awards in 1995, 1997, and 1999 without nominating
herself. All 11 employees who were nominated received an award.
-3-
Ms. Smith’s last day working in the Albuquerque EEOC office was
October 26, 2001, when she requested to be placed on leave without pay. Her
application for disability retirement was granted on March 23, 2002.
On November 15, 2001, Ms. Alley and the head of the Albuquerque office,
Georgia Marchbanks, completed Ms. Smith’s performance appraisal for fiscal
year 2001. EEOC employees are evaluated as either “Outstanding,” “Proficient,”
or “Unacceptable.” Ms. Alley and Ms. Marchbanks determined that her
performance merited an appraisal of “Proficient.” In all her previous years with
the EEOC, Ms. Smith had received an appraisal of “Outstanding.”
Ms. Smith first contacted an in-house Equal Employment Opportunity
(EEO) counselor on August 24, 2001, the day before she returned to work after a
two-month leave. It was during this leave that she had been told of racist remarks
by Ms. Alley against her. After Ms. Smith had worked her last day in the
Albuquerque EEOC office, she filed three separate EEO Charges of
Discrimination: on October 29, 2001; November 30, 2001; and January 9, 2002.
The October charge challenged the issuance of the LOW, alleging that Ms. Smith
received it as the result of race and national-origin discrimination. The charge
also alleged that Ms. Alley falsely accused Ms. Smith of being anti-Hispanic, that
Ms. Alley encouraged co-workers to be hostile toward Ms. Smith, and that Ms.
Alley minimized the value of Ms. Smith’s work.
-4-
In her second EEO charge, Ms. Smith alleged that she had suffered race
and national-origin discrimination and retaliation. She based her allegations on
the following actions: she had not received a cash or time-off award in 2001,
Ms. Alley had discussed Ms. Smith’s earlier EEO complaint with other
employees, and Ms. Alley had required Ms. Smith to provide a doctor’s note for a
one-day absence from work.
Ms. Smith’s third EEO charge alleged discrimination on the basis of race,
national origin, and mental disability, as well as retaliation. The charge
complained that she had received a “Proficient” rather than an “Outstanding”
rating on her performance appraisal, and that Ms. Alley had discussed
Ms. Smith’s earlier EEO complaints with other employees.
On April 16, 2003, Ms. Smith filed this lawsuit against the EEOC, claiming
race discrimination, national-origin discrimination, disability discrimination and
retaliation. On January 23, 2004, the district court dismissed Ms. Smith’s race-
discrimination claim based on issuance of the LOW. It determined that she had
failed to exhaust her administrative remedies with respect to that claim because
she had not complied with the requirement of 29 C.F.R. § 1614.105(a)(1) that she
contact an EEO counselor within 45 days of the alleged discriminatory action. On
August 20, 2004, the district court granted summary judgment to the EEOC on the
-5-
rest of Ms. Smith’s claims. The court also denied Ms. Smith’s request to depose
Ida Castro, the former chair of the EEOC.
II. DISCUSSION
A. Standard of Review
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard that should have been used by the district court.”
Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (internal
quotation marks and brackets omitted). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
B. Hostile Work Environment
Title VII of the Civil Rights Act of 1964 prohibits discrimination “against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). This prohibition reaches racially hostile or
abusive work environments. See Bolden v. PRC Inc., 43 F.3d 545, 550 (10th Cir.
1994). “To constitute actionable harassment, the conduct must be sufficiently
severe or pervasive enough to alter the conditions of the victim’s employment and
-6-
create an abusive working environment.” Id. at 550-51 (internal quotation marks
and brackets omitted). In addition, the plaintiff must show that “the harassment
was racial or stemmed from racial animus,” id. at 551, and that she “subjectively
perceive[d] the environment to be abusive,” Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993).
The district court ruled that the one overt instance of racial enmity that
Ms. Smith alleged—namely, Ms. Alley’s false accusation that she was anti-
Hispanic—was insufficient, standing alone, to support a hostile-work-
environment claim. The court also ruled that the other hostile actions alleged by
Ms. Smith, which were not overtly race-based, did not support a claim for a
racially hostile work environment. The court further found that “none of these
alleged hostile actions was sufficiently severe or pervasive to alter the conditions
of [Ms. Smith’s] employment and create an abusive working environment.” Aplt.
App. at 427.
On appeal Ms. Smith argues that her allegations of severity and
pervasiveness of the harassment were sufficient to survive summary judgment.
Four of Ms. Smith’s allegations have a racial component: (1) Ms. Alley falsely
accused her of assigning walk-in EEOC clients to particular EEOC investigators
based on the race of the clients, (2) Ms. Alley called her a racist, (3) Ms. Alley
claimed Ms. Smith was anti-Hispanic, and (4) Ms. Alley addressed her with
-7-
demeaning names, including “Mi Hita,” a term used by Spanish-speakers to
address their daughters or granddaughters. In addition, Ms. Smith claims that
Ms. Alley harassed her in numerous other ways. Among these allegations were
that Ms. Alley falsely accused her of intending to commit perjury, refused to let
her teach and mentor others in the office, refused to appoint her acting supervisor
of the office on certain occasions, accused her of not being a team player, told her
colleagues that Ms. Smith thought she was better than them, pressured colleagues
to make complaints about Ms. Smith, “strutt[ed] by, sneer[ed] at or ignor[ed]
Ms. Smith,” Aplt. Br. at 22 n.2, denied her smoking breaks, denied her an annual
award, and disciplined Ms. Smith with the LOW for using swear words in the
office when others were not so disciplined. Ms. Smith argues that the district
court erred in finding that the ostensibly nonracial harassment would not support
a claim of hostile work environment because those actions were part of a course
of conduct that was “‘tied to evidence of discriminatory animus.’” Aplt. Br. at 24
(quoting Bolden, 43 F.3d at 551). She contends that the alleged misconduct,
considered in its totality, created a pervasively hostile work environment.
We disagree. To begin with, we note that we can limit this claim to her
work environment during the two months from August 25 to October 26, 2001,
because during her earlier time at work she had not perceived any racial
discrimination. As noted above, an employee cannot claim that a work
-8-
environment constitutes a hostile work environment under Title VII unless the
employee “subjectively perceive[s] the environment to be abusive.” Harris, 510
U.S. at 21. We addressed the meaning of the subjective-perception requirement
in Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993). In Sauers a female
employee alleged a sexually hostile work environment. Id. at 1124. We affirmed
the district court’s judgment for the defendant, stating, “although plaintiff
presented significant evidence objectively supporting a sexual harassment claim,
the evidence in the record supports the district court’s finding that plaintiff
herself did not perceive [her supervisor’s] actions as sexual harassment, but
merely as ‘disgusting and degrading conduct.’” Id. at 1127. As Sauers shows,
Ms. Smith needed to believe not simply that she was being harassed, but also that
the harassment was racially motivated. Yet, as Ms. Smith’s counsel conceded at
oral argument, Ms. Smith did not perceive her treatment by Ms. Alley as racially
motivated until August 20, 2001, when she was told of the alleged racist
comments Ms. Alley had made about her. Accordingly, Ms. Smith’s hostile-
work-environment claim could have arisen only during her last two months at
work.
Turning to that two-month period, we find inadequate evidence to satisfy
another element of a hostile-work-environment claim—namely, that the “conduct
must be sufficiently severe or pervasive to alter the conditions of the victim’s
-9-
employment and create an abusive working environment.” Bolden, 43 F.3d at
550-51 (internal quotation marks and brackets omitted). The only act alleged by
Ms. Smith that can be dated during her work between August 25 and October 26,
2001, is the failure to give her an employee award. The other misconduct she
alleges either occurred before that period, occurred after she quit going to work
(her “Proficient” work evaluation in November 2001), or is undated. Thus, she
has failed to establish the basis for a claim that while working between August
and October 2001 she suffered sufficiently serious harassment to support a Title
VII claim. See id.
C. Dismissal of LOW Claim
Ms. Smith also appeals the district court’s grant of summary judgment on
her race-discrimination claim related to the letter of warning (LOW) issued by
Ms. Alley on September 29, 2000. The district court ruled that the claim was
barred because Ms. Smith did not consult an EEO counselor within 45 days of the
alleged adverse employment action. Ms. Smith does not dispute that such
consultation is required by 29 C.F.R. § 1614.105 (relating to employees of certain
federal agencies), which states:
(a) Aggrieved persons who believe they have been
discriminated against on the basis of race, color, religion, sex,
national origin, age or handicap must consult a Counselor prior to
filing a complaint in order to try to informally resolve the matter.
-10-
(1) An aggrieved person must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be discriminatory
or, in the case of personnel action, within 45 days of the effective
date of the action.
See Davis v. U. S. Postal Serv., 142 F.3d 1334, 1339 (10th Cir. 1998).
Ms. Smith argues, however, that the 45-day time limit was satisfied because
she initiated a union grievance within 45 days of issuance of the LOW, and
thereby fulfilled the policies underlying exhaustion—“protecting administrative
agency authority and promoting judicial efficiency.” Aplt. Br. at 25; see Monreal
v. Potter, 367 F.3d 1224, 1233 (10th Cir. 2004). But Ms. Smith did not allege
racial discrimination in her union grievance, so the agency was not alerted to her
discrimination claim. The union grievance did not serve the purpose of a
consultation with an EEO counselor. Cf. id. (class complaint of discrimination
put agency on notice of individual claims).
Ms. Smith also suggests that the time limit should be tolled because she
made an EEO report regarding the LOW “as soon as it became cognizable as a
‘practice’ motivated by her race.” Aplt. Br. at 26. The district court rejected this
argument, explaining that “the fact that a plaintiff may not have discovered the
alleged discriminatory motive for an adverse employment action until later does
not extend the 45-day period in which to contact an EEOC counselor” because the
“45-day period begins to run when the plaintiff learns of the adverse employment
-11-
action and so is on notice to inquire whether the motive was discriminatory.”
Aplt. App. at 91-92 (internal quotation marks omitted).
We note that 29 C.F.R. § 1614.105(a)(2) provides for tolling in certain
circumstances:
The agency or the Commission shall extend the 45-day time
limit in paragraph (a)(1) of this section when the individual shows
that he or she was not notified of the time limits and was not
otherwise aware of them, that he or she did not know and reasonably
should not have been known [sic] that the discriminatory matter or
personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from
contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
But the extension is to be granted by the EEOC. Ms. Smith presents no reason
why she did not seek such an extension. Ms. Smith was advised by the EEO
counselor’s report that she had made her initial EEO contact more than 45 days
after the issuance of the LOW and that a formal complaint was therefore likely to
be dismissed. Nothing in the record indicates that she offered any reason for her
late contact with the EEO counselor; in fact, the line on the counseling report for
“Reason for Delayed Contact Beyond 45 Days, if Applicable” is left blank, Aplt.
App. at 306. Therefore, we must agree with the district court that this claim is
barred.
D. Retaliation
-12-
Ms. Smith also challenges the district court’s ruling that she had not
presented a prima facie case of retaliation. The district court based its ruling on
Ms. Smith’s failure to demonstrate that she had been subjected to an adverse
employment action and her failure to cite any evidence in the record to support
the allegations of retaliation.
Rather than addressing the district court’s reasoning, her argument in
support of the retaliation claim in her brief-in-chief is as follows:
After Smith engaged in protected activity by confronting her
supervisor and initiating an EEO charge, her work circumstances
changed such that they could no [sic] be survived through temporary
leaves of absence. The record is replete with evidence of retaliation.
The District Court erred in granting summary judgment on the
retaliation claim.
Aplt. Br. at 26-27. A footnote to the paragraph summarily lists instances of
alleged retaliation. We will not search the record for evidence that the listed
instances were motivated by retaliation. This argument is insufficient to present
the matter on appeal. See American Airlines v. Christensen, 967 F.2d 410, 415
n.8 (10th Cir. 1992). See also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th
Cir. 1994) (“[P]erfunctory complaints fail to frame and develop an issue
sufficient to invoke appellate review.”).
E. Disability Discrimination
Ms. Smith appeals the dismissal of her claim that the EEOC failed to
accommodate her disability. The district court granted summary judgment to the
-13-
EEOC because Ms. Smith did not present evidence showing disability under the
Rehabilitation Act of 1973 and because she failed to respond to the EEOC’s
argument to this effect in its summary-judgment motion. Citing D.N.M. Local
Rule Civ. 7.1(b), the district court ruled that Ms. Smith’s failure to respond to the
EEOC’s argument constituted consent to grant the motion with respect to that
claim. The court also ruled that Ms. Smith had not suffered an adverse
employment action.
Ms. Smith’s opening brief makes no attempt to explain her failings below
or to argue why the violations of the local rules should not bar her claim.
Therefore, we must affirm the district court on this issue.
F. Direct Evidence of Discrimination
Both Ms. Smith and the EEOC have devoted portions of their briefs to the
question whether Ms. Smith presented direct or indirect evidence of racial
discrimination to the district court. Because this issue is irrelevant to the
outcome of this appeal, we need not decide it. See Griffin v. Davies, 929 F.2d
550, 554 (10th Cir. 1991).
G. Deposition of Ida Castro
Finally, Ms. Smith challenges the district court’s denial of her motion for
leave to depose Ms. Castro, the former chair of the EEOC. The magistrate judge
denied Ms. Smith’s motion because the EEOC had shown that “Ms. Castro has no
-14-
personal knowledge or recollection of Plaintiff or this lawsuit or the
administrative case and grievance,” Aplt. Ap. at 108, and Ms. Smith had not
shown that the deposition would produce any information leading to admissible
evidence, see Fed. R. Civ. P. 26. On appeal the extent of Ms. Smith’s argument
is: “This witness has discoverable information about the supervision of this office
and management decisions, including first-hand knowledge of the denial of
Ms. Smith’s grievance.” Aplt. Br. at 28. We are not persuaded.
III. CONCLUSION
We AFFIRM the ruling of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-15-