Montes v. Vail Clinic, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

August 14, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

ANA PATRICIA M ONTES,
NELY DA VILA, M AR GA RITA
ER AZO , EV A ESC OB ED O ,
ER NESTO G A RC IA , WILLIE M AE
HO PKINS, ELIZAB ETH
JA RA M ILLO , and M ER VY N D.
VARGAS, on behalf of themselves
and all other interested and similarly
situated parties,
No. 05-1385
Plaintiffs-Appellants,

and

JOSEFA C. DIAZ, and ANG ELICA
NUNEZ, on behalf of themselves and
all other interested and similarly
situated parties,

Plaintiffs,

v.

VAIL CLIN IC, IN C.,

Defendant-Appellee,
and

SER VIC EM A STER MA N A G EM ENT
SERVICES LIM ITED
PARTNERSHIP,

Defendant.
 Appeal from the United States District Court
for the District of Colorado
(D.C. No. 01-CV-1250-RPM -CBS)

David Sandoval, Sandoval Law Firm, Santa Fe, New M exico, for Plaintiffs-
Appellants.

Andrew M . Low (Janet A. Savage and Catherine L. Guzelian, with him on the
brief), Davis Graham & Stubbs LLP, Denver, Colorado, for Defendant-Appellee.

Before L UC ER O, M U R PHY , and GORSUCH, Circuit Judges.

G O R SU CH, Circuit Judge.

Eight former employees of the Vail Clinic, Inc., a hospital in Vail,

Colorado, appeal the district court’s grant of summary judgment to the Clinic on

their Title VII claims. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq. (“Title VII” or the “Act”). W ith respect to five of the

appealing plaintiffs, we conclude that they fail to establish, as they must, the

timeliness of their claims. W ith respect to the remaining three plaintiffs, we are

able to address the substance of their appeal but, like the district court, conclude

that they have not adduced facts from which a reasonable jury could find a

violation of Title VII. On these bases, we affirm. 1

1
Two other individuals who were plaintiffs in the district court are not
before us in this appeal – Josefa C. Diaz elected not to appeal and Angelica
(continued...)

-2-
 I

Summary judgment follows when a moving party points to the absence of

factual support on an element essential to the non-movant’s case, and on which

the non-movant bears the burden of proof at trial. See Celotex Corp. v. Catrett,

477 U .S. 317, 322-24 (1986). The Clinic argues that the plaintiffs in this case

have failed to present record evidence sufficient to suggest that they filed timely

Title VII charges with the federal Equal Employment Opportunity Commission

(“EEOC”), and that proof of such a timely charge is a condition precedent to

bringing suit. Viewing the facts in the light most favorable to plaintiffs and the

parties’ legal arguments de novo, Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249

(10th Cir. 2006), we are constrained to agree with respect to five of the eight

plaintiffs before us.

A

An employee wishing to challenge an employment practice under Title VII

must first “file” a “charge” of discrimination with the EEOC. 42 U.S.C.

§ 2000e-5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., __ U.S. __, 127 S. Ct.

2162, 2166-67 (2007). Because Title VII seeks to avoid “the pressing of stale

claims,” it requires aggrieved persons to file any such charge within certain

specified periods after the allegedly unlawful conduct occurred. Zipes v. Trans

1
(...continued)
Nunez was dismissed from this litigation prior to our decision.

-3-
World Airlines, Inc., 455 U.S. 385, 394 (1982) (quotation omitted). If the

employee does not submit a timely EEOC charge, he or she may not proceed to

court. Ledbetter, 127 S. Ct. at 2166-67. W hile the applicable deadline for filing

a charge with the EEOC depends on a variety of circumstances, the latest possible

filing date is 300 days after the last allegedly unlawful act. See 42 U.S.C. §

2000e-5(e)(1).

Here, the last alleged violation of Title VII for each plaintiff coincided with

his or her termination date. 2 And the undisputed facts reveal that five of the eight

plaintiffs before us (N ely Davila, M argarita Erazo, W illie M ae Hopkins, Elizabeth

Jaramillo, and M ervyn Vargas), filed their charges with the EEOC more than 300

days after their respective terminations. Under our precedents and those of the

Supreme Court, this combination of facts would seem to require dismissal of the

claims of these particular plaintiffs. See Holmes v. Utah, Dep’t of Workforce

Servs., 483 F.3d 1057, 1061-62 (10th Cir. 2007) (dismissing allegations w hich did

not occur w ithin the 300 day filing period); see also Ledbetter, 127 S. Ct. at

2166-68.

Specifically, the record before us reflects that most of the plaintiffs

departed the Clinic between November 1998 and M ay 1999; beginning

approximately six months later, on November 3, 1999, and proceeding at various

2
None of the plaintiffs has alleged any Title VII violation after his or her
termination in the form, say, of unlaw ful retaliatory conduct.

-4-
dates through April 2000, they filed sworn charges with the EEOC. The

following chart summarizes the exact dates on which each plaintiff was

terminated and filed his or her charge with the EEOC: 3

Plaintiff Date of Termination Date of EEOC Charge
Nely Davila April 28, 1999 April 4, 2000
M argarita Erazo April 16, 1999 April 10, 2000

Eva Escobedo Nov. 11, 1999 M arch 17, 2000
Ernesto Garcia M ay 30, 1999 M arch 17, 2000
W illie M ae Hopkins Nov. 6, 1998 Nov. 3, 1999 4
Elizabeth Jaramillo April 19, 1999 5 April 4, 2000
Ana Patricia M ontes Aug. 2, 1999 M arch 20, 2000

3
The record citations identifying the relevant dates for each plaintiff are as
follows: M s. Davila, Appellants’ A pp. at 68, 71-72; M s. Erazo, id. at 132, 136;
M s. Escobedo, id. at 174, 465; M r. G arcia, id. at 196, 206; M s. Hopkins, id. at
238; M s. Jaramillo, id. at 247-48, 274; M s. M ontes, id. at 308, 312; M r. Vargas,
id. at 353, 357. Unless otherwise indicated, all record citations to the appendix
are to the appellants’ appendix (“App.”).
4
The district court concluded that M s. Hopkins’s charge was filed on
M arch 3, 1999, because the defendants’ summary judgment brief identified M arch
3, 1999, as the filing date against its interest. The actual filing date as identified
on the charge itself is November 3, 1999. Because plaintiffs did not include any
of the summary judgment papers in the appellate record and did not advocate our
acceptance of the filing date deemed by the district court on appeal, we conclude
that M s. Hopkins’s charge was filed on November 3, 1999, as indicated by the
“received” stamp on the charge.
5
M s. Jaramillo was transferred to a different department on this date, not
terminated. However, for our purposes, that fact is inconsequential because she
stated that she was not subject to any harassment after the transfer. App. at 247-
48, 271.

-5-
 M ervyn Vargas M ay 11, 1999 M arch 20, 2000

As the chart reflects, all but M s. Escobedo, M r. Garcia and M s. M ontes, filed

charges with the EEOC more than three hundred days after their termination – a

delay that would seemingly prove fatal to their effort to challenge the Clinic’s

conduct in court.

B

Plaintiffs suggest that this case is more complicated because they “filed

charges” within the meaning of Title VII even before the dates reflected above.

In support of this contention, plaintiffs submit that, long before they presented

formal charges to the EEOC, they contacted the Colorado Civil Rights Division

(“CCRD”) – first by letter from their counsel on August 17, 1999, and then,

shortly thereafter, by completing “intake forms” with the division. These contacts

with the CCRD, they contend, suffice to qualify as the “filing” of “charges” with

the EEOC under Title VII. Defendants, meanwhile, emphasize that no evidence

reflecting or regarding these contacts with the CCRD exists in the record before

us and urge that this deficiency is dispositive. W e must agree. The viability of

plaintiffs’ argument can be assessed only with a review of the content of their

submissions to the CCRD; without counsel’s letter or the intake forms (all

materials that are uniquely within plaintiffs’ control), we are unable to do more

than speculate whether they qualified as “charges” or whether they were “filed”

within the time period prescribed by law. And speculate we may not do. See

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Bones v. Honeywell Intern., Inc., 366 F.3d 869, 875 (10th Cir. 2004) (“To defeat a

motion for summary judgment, evidence, including testimony, must be based on

more than mere speculation, conjecture, or surmise.”).

Indeed, to ascertain whether plaintiffs’ materials might or might not qualify

as “filed charges” with the EEOC is not the straightforward task it might at first

blush seem. The question what sort of documents suffice to qualify as “charges”

under Title VII is surprisingly unresolved, see, e.g., Ledbetter, 127 S. Ct. at 2166

n.1; Edelman v. Lynchburg College, 535 U.S. 106, 118-19 (2002), and has

generated a circuit split. 6 Some courts suggest that an informal intake

questionnaire filed with a state entity like the CCRD 7 or the EEOC almost always

constitutes an EEOC charge; others hold that it will rarely do so; these competing

6
This debate is not confined to the Title VII context but extends to the
Age Discrimination in Employment A ct, 29 U.S.C. § 621, et seq. (“ADEA”)
context as well. Neither is the commonality of this problem a surprise given that
“the filing provisions of the ADEA and Title VII are virtually in haec verba, the
former having been patterned after the latter.” E.E.O.C. v. Commercial Office
Prods. Co., 486 U.S. 107, 123-124 (1988) (quotation omitted); com pare 29 U.S.C.
§ 626(d), with 42 U.S.C. § 2000e-5(e)(1). For this reason, we occasionally cite
and find instructive the cases construing the ADEA’s filing requirements together
with those construing Title VII’s filing regime.
7
Reflecting Congress’s wish that claims be resolved locally and
voluntarily when possible, state agencies that satisfy statutory and regulatory
criteria ordinarily must be afforded the opportunity to first process claims of
discrimination. See 42 U.S.C. § 2000e-5(c); see also 29 C.F.R. § 1601.70; id.
§ 1601.80 (identifying the CCRD as such a state agency). Title VII’s charge
filing provision accommodates this deferral requirement by extending the time
period required to file a charge with the EEOC from 180 to 300 days where the
aggrieved person initially instituted proceedings with such a state agency. See 42
U.S.C. § 2000e-5(e)(1).

-7-
positions are anchored by the Ninth and Sixth Circuits, respectively. 8 M any

circuits appear to populate some form of middle ground; while these circuits

agree that a completed questionnaire must meet the EEOC’s regulations

prescribing the minimum contents of a charge, see 29 C.F.R. § 1601.12 (minimum

contents of a Title VII charge); id. § 1626.8 (minimum contents of an AD EA

charge), they differ on what more is required. M ost apply some variant of the

“manifestation of intent” test – asking whether a reasonable person would have

known that the aggrieved person “intended to activate the Act’s machinery”

through his or her submission of a questionnaire – but some consider additional

factors. 9 To date, at least, our circuit has not been called to voice a view.

8
Compare Casavantes v. Cal. State U niv., Sacramento, 732 F.2d 1441,
1443 (9th Cir. 1984) (concluding that under Title VII an intake questionnaire
constituted a charge because it met the EEOC regulations governing the
substantive content of a charge); with D orn v. Gen. M otors, 131 Fed. Appx. 462,
470 n.7 (6th Cir. 2005) (unpub.) (ruling that the ADEA requires “a formal charge,
not an inquiry or complaint”).
9
Compare Holowecki v. Fed. Express Corp., 440 F.3d 558, 568-69 (2d Cir.
2006) (holding an intake questionnaire to constitute a charge under the AD EA
upon application of the “manifestation of intent” test although the EEOC did not
consider the questionnaire to be a charge and the aggrieved person subsequently
filed a formal charge); with Bost v. Fed. Express Corp., 372 F.3d 1233, 1240-41
(11th Cir. 2004) (applying the “manifestation of intent” test in the ADEA context
and also considering the EEOC’s perception of the document, the subjective
intent of the aggrieved person, and the content of the questionnaire form); Diez v.
M inn. M ining & Mfg. Co., 88 F.3d 672, 676-77 (8th Cir. 1996) (same); Steffen v.
M eridian Life Ins. Co., 859 F.2d 534, 542-44 (7th Cir. 1988) (same). But see
Edelman v. Lynchburg Coll., 300 F.3d 400, 404-05 (4th Cir. 2004) (not applying
the “manifestation of intent” test and holding a letter to be a charge under Title
VII because it met the EEOC’s charge-content regulations and the aggrieved party
(continued...)

-8-
 Plaintiffs’ argument would, of course, change all that and require us to

decide whether and when the completion of an informal intake form with the

CCRD may qualify as a “charge” w ith the EEOC. But without the plaintiffs’

actual CCRD filings, or even some meaningful record evidence about their

contents, we would be marching into an intercircuit split unable to contribute

thoughtfully to the discussion or even fairly resolve this appeal, for we could not

begin to say whether plaintiffs’ filings meet even the minimum required to be

considered a “charge” under any of the tests advanced by the circuit courts.

Taking the most permissive standard applied by courts for determining whether

submission of a questionnaire with a state entity constitutes a “charge” under

Title VII, a plaintiff’s state filing must satisfy the charge “content” regulations

promulgated by the EEOC. See, e.g., Casavantes, 732 F.2d at 1443. The

applicable EEOC regulations, in turn, require “a written statement sufficiently

precise to identify the parties, and to describe generally the action or practices

complained of.” See 29 C.F.R. § 1601.12(b). Although this standard is not

9
(...continued)
subjectively believed it to be a charge, although the EEOC did not).

To be sure, the Court recently granted certiorari to resolve a circuit split
regarding whether and under what circumstances an “intake questionnaire” can
qualify as a charge under the AD EA. See Fed. Express Corp. v. Holowecki, 127
S. Ct. 2914 (2007). Although the statutory regime is different, the Court’s
resolution of that question promises to offer at least some help in the Title VII
context as well, given the parallel filing requirements. See Com mercial Office
Prods., 486 U.S. at 123-124. For now, however, legally speaking we are w here
we are.

-9-
demanding, we simply cannot know whether it is satisfied in this case without an

examination of plaintiffs’ submission to the CCRD. Thus, for example, Title VII

requires each discrete act of discrimination (such as termination, failure to

promote, denial of transfer, or refusal to hire) to be described in and the subject

of a timely filed charge. See Nat’l R.R. Passenger Corp. v. M organ, 536 U.S.

101, 113 (2002); see also Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184

(10th Cir. 2003) (“a claimant must file a charge of discrimination within the

appropriate limitations period as to each such discrete act of discrimination that

occurred”). That is, a plaintiff can bring a lawsuit for only those “unlawful

em ploym ent practices” described in his or her administrative charge. Because w e

have no idea what acts of discrimination the plaintiffs in question included within

their CCRD submission, we are in no position to assess what claims they may

have preserved for litigation.

W e find ourselves in an equally problematic position with respect to the

question whether the alleged submission to the CCRD was ever “filed” with the

EEOC in the requisite 300 day period. See 42 U.S.C. § 2000e-5(e)(1); see also

Ledbetter, 127 S. Ct. at 2177. Even assuming that plaintiffs’ unproduced state

submissions qualify as “charges,” we do not know when they were “filed” with

the EEOC. If plaintiffs asked the CCRD to forward their “charges” to the EEOC,

a filing would have been effected under EEOC regulations at most 60 days later,

on October 16, 1999. See 29 C.F.R. § 1601.13(b)(1). However, if plaintiffs did

- 10 -
not so request, the C CR D documents would not have been filed with the EEOC

unless (i) plaintiffs filed them w ith the EEOC themselves, or (ii) plaintiffs alleged

and provided evidence of the existence of a worksharing agreement whereby the

CCRD acted as the agent of the EEOC for purposes of accepting a charge even in

the absence of a forw arding request. See, e.g., Johnson v. J.B. Hunt Transp., Inc.,

280 F.3d 1125, 1129-30 (7th Cir. 2002) (holding that, in light of a worksharing

agreement between the state agency and the EEOC, a charge of discrimination

filed with the state agency was “properly filed with the EEOC” on the same date).

Because the record before us does not include plaintiffs’ CCRD submission, and

because there is no other evidence in the record suggesting that either a

forw arding request w as made or that a w orksharing agreement existed, we simply

cannot know whether plaintiffs “filed” within the requisite statutory time period.

C

Recognizing the limits of the record before us, plaintiffs offer two fallback

arguments.

First, they assert that the EEOC’s “relation-back” doctrine dissipates any

cause for concern about the timeliness of their charges. See Reply Br. 6-7.

Pursuant to that doctrine, a defective charge filed during the applicable 300-day

period may be amended outside the limitations period to cure technical defects or

omissions if the amendments are directly “related to or growing out of the subject

matter of the original charge.” 29 C.F.R. § 1601.12(b); see also Edelman, 535

- 11 -
U.S. at 118. 10 But the relation-back principle applies, and a prior defective charge

may be subsequently amended, only when the earlier filing can itself be fairly

construed to operate as a “charge.” See Peterson v. City of Wichita, 888 F.2d

1307, 1308-09 (10th Cir. 1989) (permitting relation back where plaintiff

submitted to the EEOC a timely though unverified charge); see also Edelman v.

Lynchburg Coll., 300 F.3d 400, 403-04 (4th Cir. 2002); Pijnenburg v. W. Ga.

Health Sys., Inc., 255 F.3d 1304, 1306-07 (11th Cir. 2001). Plaintiffs’ argument

thus underscores rather than resolves our quandary, turning as it necessarily does

on an assumption that their initial letter and intake forms to the CCRD qualified

as “charges” to the EEOC, a question we simply are unable to answer on the

record before us.

Second, plaintiffs respond that it was the Clinic, not them, who bore the

burden of producing the CCRD correspondence and intake forms because whether

plaintiffs “filed” a “charge” within the 300-day filing deadline is properly

understood only as an affirmative defense and thus a matter on which the Clinic

bore the burden of proof. This, however, is an argument our precedents foreclose.

W hile Title VII’s mandatory time limit for filing charges w ith the EEOC is not a

jurisdictional prerequisite (and is thus subject to waiver, estoppel, and tolling

10
The Clinic argues in passing that plaintiffs may not rely on Edelman’s
relation-back doctrine because it applies only to the “lay complainant,” not
plaintiffs represented by counsel. Appellee’s Br. 23. Because application of the
doctrine would not counsel for a different result, we assume (without deciding)
that the doctrine applies in this case.

- 12 -
when equity requires), see Zipes, 455 U.S. at 393, the obligation to demonstrate

timeliness in filing a charge is a condition precedent to suit and thus a burden for

plaintiffs to carry, see M illion v. Frank, 47 F.3d 385, 389 (10th Cir. 1995). 11 The

Supreme Court has repeatedly described compliance with Section 2000e-5(e)(1)’s

filing requirements as “prerequisites that a plaintiff must satisfy before filing

suit,” M organ, 536 U .S. at 109, noting as well that “[t]imely filing is a

prerequisite to the maintenance of a Title VII action,” United Air Lines, Inc. v.

Evans, 431 U.S. 553, 555 n.4 (1977). In consonance with these directives, we and

every circuit court to address the question directly therefore have deemed

compliance with Title VII’s filing deadline as a condition precedent rather than an

affirmative defense. See M illion, 47 F.3d at 389 (“[t]he filing requirements of

Title VII” are “condition[s] precedent”); Alexander v. Local 496, Laborers’ Int’l

U nion of N . Am ., 177 F.3d 394, 407 (6th Cir. 1999); Lawrence v. Cooper Cmtys.,

Inc., 132 F.3d 447, 451 (8th Cir. 1998); Perkins v. Silverstein, 939 F.2d 463, 469-

70 (7th Cir. 1991); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1010-11

(11th Cir. 1982). 12

11
See also M oore’s Federal Practice § 9.04[5] (3d ed. 2006) (“Pleading
conditions precedent is not a requirement of subject matter jurisdiction, and
therefore the defense [of nonperformance or nonoccurrence of a condition
precedent] may be w aived.”).
12
On first blush, the D.C. Circuit appears to abide by the contrary rule.
See Smith-H aynie v. District of Columbia, 155 F.3d 575, 577 (D.C. Cir. 1998)
(“In Gordon v. National Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir.
(continued...)

- 13 -
 The structure of the Act supports this conclusion. The filing deadlines

associated with a Title VII charge are integrated into the statutory section that

delineates the various other steps a prospective plaintiff must satisfy before being

given the keys to the courthouse door to file a complaint. See generally 42

U.S.C. § 2000e-5(f)(1) (requiring notification of the Commission’s dismissal of,

or failure to act upon, a charge filed pursuant to the statutory scheme prior to

bringing a civil action); see also Ledbetter, 127 S. Ct. at 2166-67. This is in

contrast to traditional affirmative defenses which are separate bars to suit and

often not so integrated into the plaintiffs’ cause of action. Cf. Jones v. Bock, __

U.S. __, 127 S. Ct. 910, 919 (2007) (in holding that the exhaustion requirement

contained in the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq.

(“PLRA”), was an affirmative defense to action brought under 42 U.S.C. § 1983,

the court found significant that the “PLRA itself is not a source of a prisoner’s

claim [rather, Section 1983 was and it does not require exhaustion]”). Placing the

burden upon plaintiffs makes sense, too, of the practical realities at hand, for they

enjoy superior access to the evidence necessary to prove their compliance with

12
(...continued)
1982), we said that a statute of limitations defense under Title VII is an
affirmative defense . . . .”). H owever, Gordon did not hold that the Title VII
limitations period is an affirmative defense; rather, it referred to the filing period
as something “like a statute of limitations” which “generally create affirmative
defenses.” See Gordon, 675 F.2d at 360. Furthermore, Gordon’s discussion came
in response to the defendant’s (rejected) claim that the filing period was
jurisdictional and did not purport to address, let alone decide, whether compliance
with the filing deadline was a condition precedent or an affirmative defense.

- 14 -
the statutory filing deadline, here their own letter and completed state forms. See

W right & Graham, Federal Practice and Procedure: Evidence 2d § 5122 at 403

(2005); accord United States v. Cont. Ins. Co., 776 F.2d 962, 964 (11th Cir.

1985); Old Ben Coal Corp. v. Interior Bd. of M ine Op. App., 523 F.2d 25, 36 (7th

Cir. 1975). 13

II

Unaffected by our analysis and disposition so far are the timely claims of

M s. Escobedo, M r. Garcia, and M s. M ontes. W ith respect to each, and by turn,

we outline the relevant timely factual allegations and pertinent legal analysis.

A

M s. Escobedo, a Hispanic woman of M exican descent, worked as a

housekeeper in the Clinic’s operating room department from approximately

December 1997 through November 1999. See App. at 140, 142-43, 465. M s.

Escobedo’s claims revolve primarily around two facts: an instruction she

received to speak only English in the Clinic’s operating rooms, and additional

work she received from her supervisor that prompted her to quit. Combined, she

13
Plaintiffs have not argued waiver, estoppel, or that the doctrine of
equitable tolling should apply to cure their tardy filings, and based on the facts
before us, we see nothing demanding their application. See, e.g., Biester v.
M idwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996) (recognizing
equitable tolling in the Title VII context where the plaintiff has been deceived,
“lulled into inaction,” “actively misled,” or “has in some extraordinary way been
prevented from asserting his or her rights” (quotations and citations omitted)).

- 15 -
contends, these circumstances suffice to give rise to Title VII claims for hostile

work environment and disparate treatment.

1

Because she had difficulty speaking English, see App. at 140, when she

began working at the Clinic M s. Escobedo primarily communicated with the

English speaking operating room nurses through the aid of an interpreter. See

App. at 146; see also id. at 159. Once, albeit in what she describes as a “nice

way,” an operating room nurse asked M s. Escobedo to speak in English; the nurse

explained that she would like M s. Escobedo to practice her English because being

more proficient would aid her job performance. See id. at 159. M s. Escobedo

testified that she did indeed have difficulty receiving lengthy instruction from the

nurses and that her job duties required “quickly” and carefully cleaning the

operating rooms in compliance with directions from the operating room nurses.

See id.; see also id. at 80-81.

A few months later, Onesima M ejia, the housekeeping department

supervisor, acting upon the request of the same operating room nurse, reiterated

the nurse’s instruction that M s. Escobedo and the other operating room

housekeeper speak English rather than Spanish while working in the operating

rooms. Id. at 159, 176. However, M s. Escobedo was expressly permitted to

speak Spanish during her breaks. Id. at 176. Neither does M s. Escobedo allege

that she, or any other housekeeper, was asked to speak English outside of the

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operating room department or forbidden from engaging in non-job related

conversations with other Spanish speakers in her native tongue. 14 M s. Escobedo

also testified that she never complained about the nurses’ instruction, see id. at

159, although she reported other grievances, including the increased work

assignments she received from M s. M ejia, see, e.g., id. at 157.

M s. Escobedo complains that, from shortly after she joined the Clinic to the

day of her resignation, her duties were repeatedly enlarged to include chores the

nurses had previously been responsible for, such as stocking medical supplies in

the operating rooms and moving stretchers from one room to another. See id. at

143-44. The nurses explained that other hospital staff “had too much work” and

that the housekeepers essentially had to fill the gap. Id. at 144. M s. Escobedo

resigned because of this additional work – it eventually became “too much.” Id.

at 144. However, she does not allege that the nurses assigned her work out of any

ill will. To the contrary, she repeatedly testified that she got along well with the

nurses; their positive feedback to Douglas Grinnell, the housekeeping department

manager, and M s. M ejia was the reason she received raises; and on at least one

occasion they tried to intervene on her behalf with M s. M ejia. See, e.g., id. at

149, 157. Neither does M s. Escobedo allege that she was singled out for

14
Rather, each housekeeper who was told to speak English was instructed
to do so only while working in the operating room department and was advised
that the policy did not apply during breaks. See App. 109, 135, 159, 176, 259.

- 17 -
additional work; rather, she testified that she never believed she was assigned any

more work than anyone else. See id. at 158.

M s. Escobedo informed M s. M ejia and M r. Grinnell of the difficult

workload and requested they hire an additional housekeeper, something which

they declined to do. See id. at 148. Stan Anderson, M r. Grinnell’s superior and

the Clinic’s D irector of Facilities, testified that M r. Grinnell was tasked with

“[b]udgetary control” of the housekeeping department and that the “marching

orders” were to “maintain” the existing budget. Id. at 2, 6. The message sent

from M r. Anderson was that the staffing was already “very, very generous” and

not to enlarge the staff, though M r. Grinnell was not expressly forbidden from

doing so. Id.

2

M s. Escobedo claims that the foregoing facts – the English-only instruction

plus the additional work assignments she received – give rise in the first instance

to a claim for hostile w ork environment. In determining whether an actionable

hostile work environment existed, “we look to all the circumstances,” M organ,

536 U.S. at 116 (quotation omitted), to see if the workplace was “permeated with

discriminatory intimidation, ridicule, and insult . . . sufficiently severe or

pervasive to alter the conditions of the [plaintiff’s] employment,” and if the

plaintiff was subjected to this abusive environment because of her national origin.

- 18 -
Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (quotation

omitted).

In this undertaking, we consider all the circumstances not from the

plaintiff’s subjective point of view but from the perspective of a reasonable

person in the plaintiff’s position. Id. Still, the victim must also “subjectively

perceive the environment to be abusive” because without such a belief, “the

conduct has not actually altered the conditions of the victim’s employment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (emphasis added); see also

id. at 25 (Ginsburg, J., concurring) (“It suffices to prove that a reasonable person

subjected to the discriminatory conduct would find, as the plaintiff did, that the

harassment so altered working conditions as to make it more difficult to do the

job.” (quotation and alteration omitted)). The question on summary judgment,

then, is whether a jury, in view of all of the evidence, could reasonably conclude

the discriminatory harassment to be sufficiently severe or pervasive as “to alter

the conditions of [the victim’s] employment and create an abusive working

environment,” M eritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (quotation

omitted), and that the victim subjectively perceived the environment to be

abusive, Harris, 510 U.S. at 21-22.

a

W e begin by recognizing that English-only instructions indeed can, in

certain circumstances, “create[] a hostile atmosphere for Hispanics in their

- 19 -
workplace” and thus violate Title VII. M aldonado v. City of Altus, 433 F.3d

1294, 1304 (10th Cir. 2006), abrogated in part on other grounds, Burlington N. &

Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2414-15 (2006); see also Garcia v.

Gloor, 618 F.2d 264, 268 (5th Cir. 1980) (noting that while “[n]either the statute

nor comm on understanding equates national origin with the language that one

chooses to speak[, l]anguage may be used as a covert basis for national origin

discrimination”); 29 C.F.R. § 1606.7(a) (observing that English-only policies may

foster a sense of “inferiority, isolation and intimidation based on [an employee’s]

national origin”). 15

To date, however, we have addressed only a sweeping English-only policy

mechanically enforced by an employer in all circumstances and at all times w ithin

the work environment; we have not had occasion to review a more tailored policy

limited, like the one now before us, to specific places or times within the

workplace. See Maldonado, 433 F.3d at 1307-08 (holding that an English-only

15
Courts have primarily addressed the effect of an English-only policy
under a disparate impact theory. See, e.g., M aldonado, 433 F.3d at 1303-07;
Garcia v. Spun Steak Co., 998 F.2d 1480, 1485 (9th Cir. 1993); Gloor, 618 F.2d
at 270; E.E.O.C. v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911, 912 (N .D. Ill.
1999). In those cases, the courts were called to decide issues not raised before us
– specifically, whether an English-only policy effected a disparate impact on
Hispanic workers. Conversely, of course, a disparate impact theory does not
require proof of discriminatory animus like the hostile work environment theory
under which M s. Escobedo chose to proceed in this case. Because our analysis is
confined to a hostile w ork environment claim in which animus is required, we
offer no view s regarding what might have been the appropriate outcome of this
case under a disparate impact theory.

- 20 -
policy, which applied at all times to all employees regardless of occupation or

activity, may have created a hostile work environment).

For its part, however, the EEOC, expressly distinguishes between English-

only policies on just this basis. See 29 C.F.R. § 1606.7. W ith respect to policies

blithely enforced at all times and places in the work environment, the EEOC

presumes, subject to rebuttal, that they violate Title VII. See id. § 1606.7(a).

W ith respect to tailored policies applicable only at “certain times” or places, the

EEOC endorses no such presumption, suggesting that such rules may more often

be linked to legitimate “business necessit[ies].” Id. § 1606.7(b).

W hile the EEOC’s guidelines are not controlling, M aldonado, 433 F.3d at

1305, we have intimated that they are nonetheless “entitled to respect, not as

interpretations of the governing law, but as an indication of what a reasonable,

informed person may think about the impact of an English-only work rule on

minority employees, even if we might not draw the same inference.” Id. at 1306.

It is with this standard in mind that we turn to a consideration of the policy before

us.

The English-only rule complained of here prohibited M s. Escobedo and

other housekeepers from speaking Spanish solely while working in the operating

room department, and apparently only for job-related discussions, and carried

with it a conceded business necessity. The policy bore no apparent effect in any

other place within the Clinic or during M s. Escobedo’s breaks or to discussions

- 21 -
unrelated to her job, and thus, according to the EEOC, is a policy applicable only

at “certain times” or places justifiable on a showing of business necessity. See,

e.g., E.E.O.C. Decision No. 83-7, 31 Fair Empl. Prac. Cas. (BNA) 1861, 1983 W L

22488, at *2 (E.E.O.C. Apr. 20, 1983). Likewise, it is undisputed that clear and

precise communication between the cleaning staff and the medical staff was

essential in the operating rooms; that the sanitariness of the operating rooms was

of paramount importance to the hospital (not to mention the health and safety of

its patients); and that most of the operating room nurses did not speak Spanish

and thus could not communicate with M s. Escobedo without resort to an

English-only policy. See Appellee’s B r. 39; App. at 228. M s. Escobedo herself

admits that maintaining the sanitariness of the operating rooms necessitated the

“quick” and careful performance of her duties and that communication with the

nurses w as essential. Neither do we have any evidence before us that the Clinic’s

policy was the product of, or resulted in, any sort of discriminatory animus. 16

All of this taken together – the narrowness of the Clinic’s policy, its origin

in the Clinic’s undisputed business necessity, and the absence of any evidence

suggesting that the policy was the product of improper motive or that it gave rise

16
To be sure, one might question the asserted “business necessity” of an
English-only policy if the employer know ingly hires employees who lack English
skills. The record before us, however, indicates that the Clinic became aware of
comm unication problems in the operating room only after M s. Escobedo was
hired and, in fact, subsequently instituted a requirement that any housekeeper
seeking placement in the operating room department first demonstrate English
proficiency. See App. at 135.

- 22 -
to any discriminatory effect – distinguish this case from the policy we faced in

M aldonado and the sorts of cases the EEOC has found to violate Title VII. See

M aldonado, 433 F.3d at 1304-06 (observing that the business necessity proffered

by the defendant was “scant” and that the blanket policy gave rise to ethnic

taunting); see also, e.g., Christina Childress v. U.S. Air Force, EEOC DOC

01842814, 1986 W L 635306, at *4-5 (E.E.O.C. July 7, 1986). On the record

before us, and in consonance with the EEOC’s views, we therefore cannot see any

reasonable basis for concluding the Clinic’s policy sufficient to give rise to a

hostile work environment claim.

b

W ith respect to her claims of additional work assignments, M s. Escobedo

makes no allegation that she or any other employee was singled out on the basis

of race or national origin. In fact, she testified that she believed her w ork

assignments were excessive because there was a shortage of housekeeping staff.

Of course, even when an increase in assignments is not on its face

discriminatory, if there exists other evidence of discriminatory conduct, a jury

may reasonably infer that even seemingly non-discriminatory work assignments

were in fact motivated by discriminatory animus. See Chavez v. New M exico, 397

F.3d 826, 833 (10th Cir. 2005). But in order for facially non-discriminatory

conduct to be so tainted, the “other” conduct at issue must be “‘overtly’”

discriminatory. Id. (quoting O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093,

- 23 -
1097 (10th Cir. 1999)). Here, however, the only conduct by the nurses which

even tangentially relates to M s. Escobedo’s national origin is the English-only

instruction related to the operating rooms. But, as we have noted, M s. Escobedo

has not alleged that it was a vehicle to effect any discriminatory animus harbored

by the nurses, let alone provide evidence of such intent or effect; to the contrary,

M s. Escobedo testified that she got along well with the nurses and they supported

her in disputes with her supervisors. This evidence before us thus simply does

not permit an inference of “overt” discrimination as required by our precedent and

we cannot say that the combination of the two incidents could reasonably be

found to have created a hostile atmosphere. See Bolden v. PRC Inc., 43 F.3d 545,

551 (10th Cir. 1994) (holding that plaintiff failed to present a triable issue as to a

hostile work environment where the “derisive environment in the workshop was

universal” – he was not “singled out” for abuse – and he failed to show the

derisive atmosphere “stemmed from racial animus”); cf. O’Shea, 185 F.3d at

1098, 1102 (holding that the “obviously sex and gender-motivated conduct” by a

supervisor – including, inter alia, his stated belief “that women in general were

incompetent, stupid and scatterbrained” – “so poisoned the entire body of conduct

tow ard Plaintiff that a jury reasonably could view all of the allegedly harassing

conduct . . . as the product of sex and gender hostility”). 17

17
M s. Escobedo might still be afforded redress under a hostile work
environment theory if untimely incidents, in conjunction with timely incidents,
(continued...)

- 24 -
 3

Beyond her hostile work environment claim, M s. Escobedo also seeks relief

under a disparate treatment theory, relying here solely on her allegations of

excessive w ork. To succeed in a disparate treatment claim, M s. Escobedo must

show that, through her work assignments, the Clinic intentionally discriminated

against her. See Ledbetter, 127 S. Ct. at 2167. Because M s. Escobedo seeks to

prove such animus solely through indirect or circumstantial evidence, we examine

her claim through the prism of the familiar burden-shifting framew ork established

by M cDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973).

Pursuant to M cDonnell Douglas, a plaintiff must first establish a prima facie case

of discrimination. See Young, 468 F.3d at 1249. Once he or she does so, the

burden shifts to the defendant to articulate a legitimate, non-discriminatory reason

for the adverse employment action. Id. If the defendant satisfies its burden, the

17
(...continued)
created a hostile work environment. See Duncan v. M anager, Dep’t of Safety, 397
F.3d 1300, 1309 (10th Cir. 2005). To do so, however, M s. Escobedo would have
to demonstrate that the untimely incidents were so related by type, frequency, and
perpetrator to the English-only instruction or increased work assignments that
they fairly could be construed to be part of the same unlawful employment
practice. See Morgan, 536 U.S. at 116-17, 120. This M s. Escobedo has not even
attempted to do, and so we deem any argument along these lines waived. See
M urrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994). Even if we were able to
overcome this hurdle, after independently review ing the untimely incidents
identified by M s. Escobedo, we see no common thread between them and the
timely incidents alleged by M s. Escobedo sufficient to permit their use here.

- 25 -
plaintiff must then show that the defendant’s proffered justification was simply

pretext for unlawful discrimination. Id.

For our purposes, even should w e assume that the additional duties M s.

Escobedo received qualify as a materially adverse employment action for

purposes of M cDonnell Douglas’s first step, her claim would still falter. There is

no question in this case but that the Clinic has “articulate[d] some legitimate,

non-discriminatory reason for the adverse employment action.” Young, 468 F.3d

at 1249. M s. Escobedo herself testified that the nurses assigned additional work

to her and other housekeepers because there was a shortage of staff, and that she

was assigned no more w ork than any other housekeeper. There is record

evidence, as well, that the housekeeping department was discouraged from

enlarging its staff because of budgetary constraints. In light of these facts, we

must acknowledge that the Clinic has met its “exceedingly light” burden of

establishing a legitimate, non-discriminatory reason for its challenged actions

under M cDonnell Douglas’s second step, Zam ora v. Elite Logistics, Inc., 478 F.3d

1160, 1165 (10th Cir. 2007) (en banc), by producing evidence that M s.

Escobedo’s cleaning duties were increased in parity with other housekeepers and

because of the surplus of work in the department; the lack of additional staff to

complete it; and the need to keep costs down.

To reach trial, M s. Escobedo must therefore show that there is a genuine

issue of material fact regarding whether the Clinic’s justification was pretextual.

- 26 -
Young, 468 F.3d at 1249. To accomplish this, M s. Escobedo must present facts

suggesting that the Clinic’s “proffered [national origin neutral] reasons w ere so

incoherent, weak, inconsistent, or contradictory that a rational factfinder could

conclude the reasons were unworthy of belief.” Id. at 1250. 18 This M s. Escobedo

fails to do. M s. Escobedo herself repeatedly testified to the excess w ork

throughout the entire housekeeping department and its even-handed distribution.

She does not allege that the Clinic had an excess of funds or in any way contest

its assertions of economy. Neither does she contend that she received her new

assignments because she was Hispanic. Rather, her own testimony establishes

that she had at least a cordial relationship with the nursing staff and that they

repeatedly commended the quality of her work to M r. Grinnell and M s. M ejia,

which resulted in her receipt of a raise. Based on these facts, we are without

choice but to affirm the district court’s grant of summary judgment to the Clinic

as to M s. Escobedo’s claims. 19

18
But showing that the employer’s proffered non-discriminatory reasons
are false will not “‘always be adequate to sustain . . . liability.” Young, 468 F.3d
at 1250 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148
(2000)). Rather, “the factfinder must be able to conclude, based on a
preponderance of the evidence, that discrimination was a determinative factor in
the employer’s actions – simply disbelieving the employer is insufficient.” Id.
(quotation omitted).
19
M s. Escobedo also seeks relief under a constructive discharge theory.
Supporting her claim, she asserts that the hostile work environment she endured
was so abusive that it left her no choice but to resign. The Supreme Court has
instructed that “[a] plaintiff who advances such a compound claim [– a
(continued...)

- 27 -
 B

M r. Garcia, a Hispanic man, worked in the Clinic’s housekeeping

department from 1995 until 1999. See App. 190, 206. M r. Garcia claims that the

confluence of being assigned an excessive amount of work and the Clinic’s policy

of forbidding family members from visiting employees during work hours at the

hospital gives rise to a hostile work environment claim.

1

M uch like M s. Escobedo, M r. Garcia claims that he was forced to resign

because M s. M ejia assigned him “a whole lot of [additional] work, and [he]

couldn’t do that sort of work.” Id. at 184-85, 195. He contends that he quit

before attempting to take on M s. M ejia’s new work assignments because “[he]

was barely able to finish with the assignments that [he] had before.” Id. at 196-

97. Prior to the enlargement of his job responsibilities, M r. Garcia’s duties

included cleaning offices, and part of a hallway, as well as disposing of the

garbage in the infectious diseases wing of the hospital. See id. at 185. The

19
(...continued)
constructive discharge claim premised on a hostile work environment –] must
show working conditions so intolerable that a reasonable person would have felt
compelled to resign.” Penn. State Police v. Suders, 542 U.S. 129, 147 (2004); see
also E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 805-06 (10th Cir. 2007) (same). A s
presented to us, however, this claim is inexorably linked to her hostile work
environment claim; for the same reasons that claim has fallen, so too must this
one.

- 28 -
additional work M s. M ejia sought to add included cleaning elevators, welcome

mats, and sweeping and mopping stairways. See id.

M r. Garcia presented various reasons for M s. M ejia’s perceived

mistreatment of him. Initially, he testified that he did not know if discriminatory

animus motivated M s. M ejia’s assignment of additional work, see id. at 185 (“Q.

Do you think you were getting this extra work because you were Hispanic? A.

W ell, that I don’t know.”). Later, he added his opinion that he was given too

much work because he was Hispanic, although he candidly admitted he had no

facts to support this belief. See id. at 200. Elsewhere still, he stated that M s.

M ejia treated him more poorly when she was “mad” but he believed her anger

was not “personal” to him and that he was not the cause of it; rather, her anger

stemmed “from home” issues. Id. at 198. And, finally, M r. Garcia expressed the

belief that the Clinic assigned him excessive work in the hopes that he would

resign so that it could hire a replacement at a lower w age. See id. at 208-09.

M r. Garcia complains as w ell that M s. M ejia and M r. Grinnell repeatedly

expressed in housekeeping department meetings the Clinic’s policy forbidding the

housekeeping staff’s family members from waiting in the Clinic lobby, see id. at

194, 208, and he indicates that he w as reprimanded sometime during January

1999 for failing to comply with this policy, see id. at 209 (“[I]n January 1999,

Onesima saw my wife in the lobby and told me again that my wife could not wait

there.”). In response, M r. Anderson testified for the Clinic that this policy

- 29 -
applied to all departments, and his assertion has not been contradicted on appeal.

See id. at 9; see also id. at 184.

2

W e are unable to discern from these limited facts a basis on which a

reasonable jury might infer a hostile work environment in violation of Title VII.

None of the traditional “hallmarks” of such a claim, such as evidence of ridicule

or mistreatment based on race or national origin, are present. Trujillo v. Univ. of

Colo. Health Sciences Ctr., 157 F.3d 1211, 1214 (10th Cir. 1998); see also

Herrera, 474 F.3d at 681-82; see also PVNF, 487 F.3d at 798-99. To be sure, at

one point M r. Garcia expressed the view that he received additional work

assignments because he is Hispanic. But M r. Garcia then proceeded to walk away

from that testimony, admitting that he had no factual basis for his opinion, and

suggesting that M s. M ejia’s behavior was instead the product of personal “home”

issues. At no point, moreover, has M r. Garcia contested that the Clinic faced

purely economic pressures that compelled its assignment of additional

responsibilities to housekeeping staff.

Similarly, a jury could not reasonably divine that M s. M ejia’s decision to

discipline him for failing to comply with the Clinic policy forbidding family

members from entering the Clinic had anything to do with M r. Garcia’s national

origin. Far from suggesting an inference that M s. M ejia or the Clinic applied the

policy only to Hispanics or solely reprimanded Hispanics or other minorities for

- 30 -
violating the rule, the record before us contains uncontroverted evidence that the

policy was applied to all Clinic staff. 20

C

M s. M ontes, a H ispanic woman, was employed in the Clinic’s

housekeeping department from 1992 until she was fired in 1999, a firing she

contends was the result of unlawful retaliation.

1

During her time at the Clinic, M s. M ontes met with a lawyer regarding the

potential of bringing this lawsuit against the Clinic. See App. at 292. M s.

M ontes asserts that one of her co-workers, Felipe M artinez, knew of her meeting

with counsel and told M s. M ejia. See id. at 291-92. Fired two months later by

M r. Grinnell, M s. M ontes claims her discharge w as the product of retaliatory

animus and designed to punish her decision to seek legal consultation. See id. at

293. M eanwhile, the Clinic asserts that M r. Grinnell discharged M s. M ontes for

insubordination after she failed to follow a supervisor’s housekeeping directive.

See id. at 291. M s. M ontes candidly admits that, shortly before being fired, she

did disregard an order from the Clinic’s lead housekeeper, M ercedes Agurcia, but

20
M r. Garcia claims that the abusive work environment led to his
constructive discharge. But M r. Garcia’s constructive discharge claim, like M s.
Escobedo’s, relies entirely on the merits of his hostile w ork environment claim
and fails with it. See supra p. 27 n.19. Similarly, M r. Garcia seeks relief under a
disparate treatment theory alleging that the Clinic discriminated against him by
assigning excessive work. But this claim presents the same legal question raised
by M s. Escobedo and it fails for the same reasons. See supra pp. 25-27.

- 31 -
urges that her insubordination was justified because the duty M s. Agurcia sought

to assign to her properly belonged to a different employee. See id. 21

2

Title VII forbids retaliation against employees who voice opposition to, or

participate in an investigation or proceeding alleging, an unlawful employment

practice by his or her employer. See 42 U.S.C. § 2000e-3(a). Because M s.

M ontes seeks to prove her retaliation claim solely through indirect or

circumstantial evidence of discriminatory animus, we turn again to M cDonnell

Douglas in analyzing her claim. See Meiners v. Univ. of Kan., 359 F.3d 1222,

1229 (10th Cir. 2004).

In order to state a prim a facie case for retaliation under M cDonnell

Douglas’s first step, M s. M ontes must demonstrate that (1) she engaged in

protected opposition to discrimination; (2) she suffered an adverse action that a

reasonable employee would have found material; and (3) a causal nexus exists

betw een her opposition and the employer’s adverse action. See PVNF, 487 F.3d

at 803; see also White, 126 S. Ct. at 2414-15. The only element in dispute here is

the last – that is, whether M s. M ontes has established the required causal nexus

21
Because M s. M ontes’s only timely allegations relate to her retaliation
claim, we include the facts relevant to that claim only; as the Court noted in
M organ, untimely discrete acts of discrimination may not be considered, and
untimely acts constituting part of a hostile work environment claim may be
considered only if the claim includes at least one timely act. See Morgan, 536
U.S. at 114, 118.

- 32 -
between her discharge and her consultation with counsel. To satisfy this element,

a “plaintiff must show that the individual who took adverse action against [her]

knew of the employee’s protected activity,” Williams v. Rice, 983 F.2d 177, 181

(10th Cir. 1993), or that M s. M ejia, the person allegedly harboring discriminatory

animus, knew and used M r. Grinnell, the person who effected the adverse action,

“as a cat’s paw to effect . . . her own biased designs.” Young, 468 F.3d at 1253.

M s. M ontes runs into an insuperable obstacle in seeking to satisfy these

standards, for her evidence that any superior at the Clinic was even aware of her

meeting with counsel derives from a single hearsay statement. M s. M ontes

asserts that M s. M ejia became aware that she met with counsel regarding her

claims of discrimination by way of a co-worker – M r. M artinez. M s. M ontes,

however, submits only her own second-hand, hearsay account of the encounter

between M r. M artinez and M s. M ejia as relayed by M r. M artinez; unfortunately,

we have before us no testimony from M r. M artinez himself. Under our

precedents, we are constrained to disregard such hearsay on summary judgment

when, as here, there is a proper objection to its use and the proponent of the

testimony can direct us to no applicable exception to the hearsay rule.

See Appellee’s B r. 60-61; Young, 468 F.3d at 1252.

Even if M s. M ontes had presented a prim a facie case of retaliation,

however, her claim would nonetheless fail at a later stage in the M cDonnell

Douglas analysis because she has not rebutted the C linic’s non-discriminatory

- 33 -
reason for her termination. See M einers, 359 F.3d at 1229. Indeed, M s. M ontes

readily admitted that she was insubordinate, just as the Clinic claims. Of course,

M s. M ontes seeks to show that the Clinic’s proffered reason for firing her was

really “subterfuge for [retaliation].” Young, 468 F.3d at 1250. But the only

reason she advances suggesting that her termination was tainted with retaliatory

animus was M s. M ejia’s purported awareness of her meeting with counsel. Even

overlooking the hearsay issue and assuming such aw areness, however, M s.

M ontes presents no competent evidence from which a jury could infer that this

information was ever relayed from M s. M ejia to M r. Grinnell, the supervisor who

fired her; neither does she allege that M s. M ejia influenced M r. Grinnell’s

decision to terminate her in any way so as to make him her “cat’s paw.” Id. at

1253. W ithout some facts along one of these lines, one might conclude that she

was retaliated against only by indulging in impermissible speculation. See Truck

Ins. Exch. v. M agneTek, Inc., 360 F.3d 1206, 1216 (10th Cir. 2004).

t t t

W e do not question that the Clinic may have been an unpleasant place to

work for the plaintiffs, but there is insufficient evidence in the record before us

from which a jury might reasonably conclude that the Clinic’s conduct was the

result of unlawful discrimination rather than hard-nosed business decisions

necessitated in some instances by economic pressures. Neither can we overlook

- 34 -
the absence of evidence in this record establishing the timeliness of many

plaintiffs’ claims. For these reasons, the district court’s judgment is

Affirmed.

- 35 -