Faragalla v. Douglas County School District RE 1

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 12, 2011

FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

ABEER FARAGALLA,

Plaintiff-Appellant,

v. Nos. 09-1393 and 10-1433
(D.C. No. 1:07-CV-02584-REB-BNB)
DOUGLAS COUNTY SCHOOL (D. Colo.)
DISTRICT RE 1; DOUGLAS
COUNTY SCHOOL DISTRICT
BOARD OF EDUCATION;
DOUGLAS COUNTY FEDERATION
FOR CLASSIFIED EMPLOYEES;
CEREBRAL PALSY OF
COLORADO, INC.,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.

Abeer Faragalla filed a pro se action against two of her former employers

and a union, alleging various claims related to her previous employment. The

*
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court granted summary judgment in favor of defendants on a majority of

the claims and declined to exercise supplemental jurisdiction over the remaining

state-law claims. The court subsequently awarded defendants their costs. In

these companion pro se appeals, Ms. Faragalla challenges the district court’s

orders granting summary judgment and awarding costs. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I. Background

Ms. Faragalla worked for Cerebral Palsy of Colorado, Inc. (CP) for several

months in 2002. After CP terminated her employment in September 2002, she

filed a complaint against CP with the Equal Employment Opportunity

Commission (EEOC). She alleged retaliation and discrimination based on her

Egyptian national origin. Although she received a right-to-sue letter from the

EEOC, Ms. Faragalla did not file an action against CP within 90 days.

Beginning in August 2005, Ms. Faragalla was employed by Douglas County

School District (DCSD). She worked at Iron Horse Elementary School (Iron

Horse) as an Educational Assistant (EA) for students with special needs. In

February 2006, DCSD rated her job performance as “Meets Expectations.” R.,

Vol. 2 at 418. Comments to her written evaluation stated, “Goals for Abeer

include developing a positive relationship with her co-workers” and “a goal for

her is to realize that interruptions and changes of plans always occur and she

needs to follow through with these additional requests.” Id. at 417. In the

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following school year, Ms. Faragalla’s workload increased when she was assigned

to work with more than one special-needs student. That fall she began reporting

to Tanya Pennington, a special education teacher at Iron Horse. From November

2006 to April 2007, Ms. Pennington documented concerns about Ms. Faragalla’s

job performance. Ms. Faragalla contends some of the events never occurred, or

that Ms. Pennington misrepresented them. During this time, Ms. Faragalla

complained to Ms. Pennington about being demeaned, having a heavier work load

than other EAs, and being assigned different duties than other EAs, specifically

excessive photocopying and cleaning the cafeteria.

Ms. Faragalla met with Ms. Pennington and Steve Getchell, Iron Horse

Principal, in December 2006 to discuss an incident related to her supervision of

special-needs students. Mr. Getchell informed her at that time that not all of the

tasks in her job description involved working directly with students. In

mid-February 2007 Ms. Faragalla had a dispute with Sandra Gates, another EA,

about who would work with a particular student, after which she complained to

Kathy Nelson, Iron Horse Assistant Principal, of being yelled at and harassed by

other EAs. Ms. Nelson met with Ms. Faragalla and Ms. Gates regarding their

dispute and spoke to other employees who witnessed it. She concluded that

Ms. Gates had not yelled at or done anything harassing toward Ms. Faragalla.

Ms. Nelson counseled Ms. Faragalla on the need to be flexible and get along with

co-workers.

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 DCSD put Ms. Faragalla on a performance improvement plan (PIP) on

February 22, 2007. The PIP identified goals, including working cooperatively

and collaboratively with Iron Horse staff; following assigned schedules when

working with students; and maintaining appropriate behavior as outlined in the

District Behavior Expectations. It also called for Ms. Faragalla to receive

coaching and training on working appropriately with co-workers, teaming, and

collaboration. The PIP required Ms. Faragalla to achieve the stated goals by

May 11, 2007. In a meeting on March 9, Mr. Getchell and Ms. Nelson informed

Ms. Faragalla they had continuing concerns regarding her compliance with

District Behavior Expectations.

On April 2, 2007, Ms. Faragalla complained to Debbie McGee, DCSD’s

Human Resources Director, of discrimination and harassment by Iron Horse staff.

Ms. McGee construed her complaint as alleging unlawful discrimination. Four

days later, on April 6, Mr. Getchell counseled Ms. Faragalla regarding a report

that she had placed a rope around a student’s body (hereafter Rope Incident). On

April 12, Mr. Getchell counseled her regarding a report that she had left a special

needs student unattended in a bathroom on April 9 (hereafter Bathroom Incident).

Ms. McGee investigated Ms. Faragalla’s discrimination and harassment

claims and found no evidence to support them. She reported her conclusions in

writing to Ms. Faragalla on May 7. Ms. Faragalla appealed Ms. McGee’s

decision to Superintendent Jim Christiansen, who reviewed the matter and

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informed her by letter dated May 9, 2007, that he agreed with Ms. McGee’s

findings.

After consulting with DCSD’s Human Resources Department,

Principal Getchell recommended termination of Ms. Faragalla’s employment to

the DCSD Board of Education. He informed her of his recommendation orally

and in writing on May 11, 2007. His letter to her summarized the performance

incidents supporting his conclusion that she failed to achieve the goals outlined in

the PIP. He also provided her with a new evaluation in which he rated her

performance as “Does Not Meet Expectations.” R., Vol. 2 at 440.

Ms. Faragalla filed a complaint against DCSD with the EEOC on May 31,

2007, alleging discrimination based on her national origin and religion, and

retaliation. The Board of Education acted on Mr. Getchell’s termination

recommendation on June 5, 2007. Ms. Faragalla requested a Level III grievance

hearing on her termination. She asked for union representation in this hearing,

but Douglas County Federation for Classified Employees (DCFCE) declined to be

involved on the basis that she was not a member of the union. She attended a

Level III hearing before Bill Hodges, DCSD Assistant Superintendent, on

June 14, 2007. He investigated her allegations and informed her by letter dated

June 20, 2007, that he supported the decision not to reinstate her employment

with DCSD. Mr. Hodges also told her she could ask DCFCE to pursue a Level IV

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arbitration hearing on her behalf, but the decision to do so was within the union’s

discretion.

DCFCE sought the advice of counsel regarding whether to demand

arbitration on Ms. Faragalla’s behalf. Before addressing the merits of her

grievance, counsel clarified that “[a]ll bargaining unit members, whether union

members or not, receive representation from [DCFCE].” Id. at 330. Thus,

Ms. Faragalla’s status as a non-member was not an appropriate basis for the union

to decline to represent her. Counsel then opined that her case was “extremely

weak” and that DCFCE had “almost no chance of a successful arbitration” on her

behalf. Id. On the basis of its counsel’s opinion, DCFCE declined to demand

arbitration on Ms. Faragalla’s grievance.

Ms. Faragalla spoke to and met with Brenda Smith, President of DCFCE,

and Tiffany Oslund, Classified Vice President of DCFCE. She says they tried to

persuade her to assert in her grievance that she was doing a good job and was

fired for no reason. But when she insisted on pursuing her discrimination and

retaliation claims, they responded, “[T]here is no need for you to say all that[.]

[T]hat is not going to look good. [T]his is going to make your grievance weak.”

Id., Vol. 4 at 40. Explaining why she thought Ms. Faragalla should not assert her

discrimination and retaliation claims, Ms. Smith told her, “[B]ecause Abeer, that

makes your claim weak.” Id.

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 Ms. Faragalla filed additional EEOC complaints against DCSD and CP on

September 26, 2007, alleging that she was being denied employment opportunities

due to negative references from her former employers. She claimed retaliation

and discrimination based on her national origin and religion. Ms. Faragalla filed

this action against defendants in December 2007. Her Third Amended Complaint

(Complaint) included twelve claims for relief, alleging causes of action under

Title VII, 42 U.S.C. §§ 2000e-2 & 2000e-3; 42 U.S.C. §§ 1981 and 1983,

additional federal statutes, the United States Constitution, the Colorado

Constitution, and other state law. Defendants moved for summary judgment. The

district court referred their motions to a magistrate judge, who recommended that

the district court grant summary judgment in favor of all defendants. After

reviewing Ms. Faragalla’s objections, the district court approved and adopted the

magistrate judge’s recommendations, granted the motions for summary judgment,

and entered judgment in favor of defendants. The court subsequently awarded

defendants their costs.

Ms. Faragalla filed timely notices of appeal and applications to proceed in

forma pauperis on appeal. The district court granted her application in case

number 09-1393 (grant of summary judgment), but denied her application in case

number 10-1433 (award of fees/costs), concluding the latter appeal was not taken

in good faith.

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II. Appeal Number 09-1393 - Grant of Summary Judgment

A. Standard of Review

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Somoza v. Univ. of

Denver, 513 F.3d 1206, 1211 (10th Cir. 2008) (quotation omitted). Summary

judgment is appropriate “if the pleadings, the discovery and disclosure materials

on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). “We examine the factual record and draw all reasonable inferences in

the light most favorable to the non-moving party.” Somoza, 513 F.3d at 1211.

We construe Ms. Faragalla’s pro se appeal arguments liberally. See de Silva v.

Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

B. Discussion

1. Sufficiency of Appellant’s Arguments

We first address the sufficiency of Ms. Faragalla’s appellate briefs. “[T]his

court has repeatedly insisted that pro se parties follow the same rules of procedure

that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005) (quotation omitted). Under Federal Rule of Appellate

Procedure 28(a)(9)(A), an appellant’s argument must include her “contentions and

the reasons for them, with citations to the authorities and parts of the record on

which the appellant relies.” But contrary to this rule, rather than setting forth her

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arguments in full, in numerous instances Ms. Faragalla references her district

court filings in her appeal briefs, often in their entirety. And her cited district

court filings frequently cross-reference to arguments in still other filings in that

court. This is not acceptable appellate argument. Local 10th Circuit Rule 28.4

provides, “Incorporating by reference portions of district court or agency briefs or

pleadings is disapproved and does not satisfy the requirements of Fed. R. App. P.

28(a) and (b).” “Allowing litigants to adopt district court filings would provide

an effective means of circumventing the page limitations on briefs set forth in the

appellate rules and unnecessarily complicate the task of an appellate judge.”

Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998)

(citations omitted). We will not sift through Ms. Faragalla’s district court filings

in order to discern the arguments she fails to develop in her appellate briefs and

the portions of the evidentiary record on which she relies. We consider her

appellate arguments with that caveat.

2. Sufficiency of Defendants’ Summary Judgment Motions
and Application of Summary Judgment Standard

Ms. Faragalla contends that defendants failed to satisfy their initial burden

of production under Fed. R. Civ. P. 56(c). “Before the burden shifts to the

nonmoving party to demonstrate a genuine issue, the moving party must meet its

initial responsibility of demonstrating that no genuine issue of material fact exists

and that it is entitled to summary judgment as a matter of law.” Reed v. Bennett,

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312 F.3d 1190, 1194 (10th Cir. 2002) (quotation omitted). “In so doing, a movant

that will not bear the burden of persuasion at trial need not negate the

nonmovant’s claim. Such a movant may make its prima facie demonstration

simply by pointing out to the court a lack of evidence for the nonmovant on an

essential element of the nonmovant’s claim.” Thom v. Bristol-Myers Squibb Co.,

353 F.3d 848, 851 (10th Cir. 2003) (citations omitted).

Ms. Faragalla fails to develop most of her arguments on this issue and the

rest are meritless. Defendants were not required to produce evidence negating her

claims. See id. And her attacks on the credibility of defendants’ evidence are

misplaced because “[i]t is axiomatic that a judge may not evaluate the credibility

of witnesses in deciding a motion for summary judgment.” Seamons v. Snow,

206 F.3d 1021, 1026 (10th Cir. 2000). She also argues generally that defendants

failed to identify evidence demonstrating the absence of any genuine issue of

material fact; their evidence was conclusory, incoherent, senseless, contradicted,

unsworn, and based on hearsay; and defendants’ evidence, in itself, demonstrated

disputed material facts. But she fails to develop any of these broad-brush

arguments in her opening brief. Accordingly, we reject Ms. Faragalla’s

contention that defendants failed to satisfy their burden of production under Rule

56(c).

Ms. Faragalla also makes general assertions of error regarding the district

court’s application of the summary judgment standard, claiming the court ignored

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evidence favorable to her, drew inferences and resolved material factual disputes

in defendants’ favor, and made credibility determinations and findings on state of

mind. Because she also fails to support these contentions with argument

sufficient to satisfy Rule 28(a)(9)(A), we do not consider them.

3. Claims Against DCSD

a. Retaliation Claims Under Title VII and § 1981

Ms. Faragalla alleged that DCSD retaliated against her in violation of Title

VII and § 1981. Title VII prohibits retaliation against individuals who oppose

discriminatory employment practices or participate in complaints or investigations

of employment practices prohibited by Title VII. See 42 U.S.C. § 2000e-3(a).

Retaliation claims are also cognizable under § 1981. See Somoza, 513 F.3d at

1211 (noting test for establishing prima facie case of retaliation is same under

Title VII and § 1981).

Finding no direct evidence of retaliation, the district court applied the

familiar McDonnell-Douglas burden-shifting framework, whereby

an employee must first present a prima facie case of retaliation,
which then shifts the burden to the employer to produce a legitimate,
nondiscriminatory justification for taking the disputed employment
action. If the employer provides a legitimate, non-discriminatory
justification for the action, the burden shifts back to the employee to
provide evidence showing that the employer’s proffered reason is a
pretext for discrimination.

Stover v. Martinez, 382 F.3d 1064, 1070-71 (10th Cir. 2004) (citation omitted).

The court first considered whether Ms. Faragalla met her burden to establish a

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prima facie case of retaliation by showing (1) she “engaged in protected

opposition to discrimination”; (2) she “suffered an adverse employment action”;

and (3) “there is a causal connection between the protected activity and the

adverse employment action.” Petersen v. Utah Dep’t of Corr., 301 F.3d 1182,

1188 (10th Cir. 2002) (quotation omitted).

i. Protected Activity

In order to engage in protected opposition to discrimination, an employee

must oppose an employment practice made unlawful by Title VII. See id. Thus,

an employee’s complaints regarding unfair treatment, no matter how

unconscionable, cannot be “protected opposition to discrimination” unless the

basis for the alleged unfair treatment is some form of unlawful discrimination in

violation of Title VII. See id. Title VII makes it unlawful for an employer “to

discriminate against any individual . . . because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 1981

prohibits intentional race discrimination in the making and enforcement of

contracts with both public and private actors. See 42 U.S.C. § 1981(a) & (c).

The district court found that Ms. Faragalla’s earliest protected activity was her

complaint to Ms. McGee on April 2, 2007, which Ms. McGee construed as a

claim of unlawful discrimination. In addition, the court also found that

Ms. Faragalla engaged in protected activity by complaining of discrimination,

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retaliation, and harassment in violation of Title VII in her communications to

Mr. Getchell and Ms. McGee on or about April 7, 2007.

Ms. Faragalla contends the court erred in concluding that none of her

pre-April 2, 2007 complaints qualified as protected opposition to discrimination.

The issue is whether she conveyed in these complaints a concern that DCSD had

engaged in a practice made unlawful by Title VII. “Although no magic words are

required, to qualify as protected opposition the employee must convey to the

employer his or her concern that the employer has engaged in a practice made

unlawful by [Title VII].” Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203

(10th Cir. 2008). She asserts the following communications were protected

activities: (1) her November 2006 complaint to Ms. Pennington about feeling

demeaned by Ms. Pennington’s yelling and finger pointing and about being given

a heavier workload than other EAs, R., Vol. 4 at 189; (2) her February 2007

complaint to Ms. Nelson regarding “harassment” by other EAs, id. at 192 1; (3) her

March 2007 complaint that the PIP was “retaliatory and discriminatory,” id.;

(4) her March 2007 letter to Mr. Getchell, complaining that Ms. Nelson ignored

“reports of being harassed, intimidated, scrutinized, and verbally attacked at

1
Ms. Faragalla contends that, by limiting the length of her affidavit and her
response to DCSD’s motion, the district court prevented her from including all
the details of her conversation with Ms. Nelson in her affidavit. She purports to
appeal all district court orders relating to this issue. For her appellate argument
she incorporates by reference her district court filings. We therefore decline to
consider this issue.

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work,” id. at 220; and her undated letter to Mr. Getchell, responding to a letter

from Ms. Nelson regarding her dispute with Ms. Gates in February 2007, id., Vol.

2 at 427-30. 2

None of these complaints, however, made any reference to Ms. Faragalla’s

race, religion, or national origin, or alleged discrimination or harassment on any

unlawful basis. See Peterson, 301 F.3d at 1188 (holding absence of reference to

unlawful discrimination can preclude retaliation claim “because an employer

cannot engage in unlawful retaliation if it does not know that the employee has

opposed . . . a violation of Title VII”). Nor is there evidence that, despite any

mention by Ms. Faragalla of discrimination on some unlawful basis,

Ms. Pennington, Ms. Nelson, or Mr. Getchell nonetheless perceived her

pre-April 2, 2007 complaints as relating to unlawful discrimination.

ii. Materially Adverse Action Causally Connected
to Protected Activity

To support a prima facie retaliation claim,

[n]o longer must a plaintiff prove that subsequent ‘adverse
employment action’ was taken against her, as that phrase has been
construed in Title VII discrimination cases. Rather the plaintiff must
show that a reasonable employee would have found the action
materially adverse such that they might be dissuaded from making a
charge of discrimination.

2
Ms. Faragalla also asserts that the EEOC charge she filed against CP in
October 2002 was protected activity, but she fails to cite evidence showing DCSD
was aware of it.

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Somoza, 513 F.3d at 1213. The district court considered whether there was a

causal connection between Ms. Faragalla’s protected activity and any of her

alleged materially adverse actions. It concluded there was sufficient evidence to

establish a prima facie case of retaliation based on Mr. Getchell rating her

performance as “Does Not Meet Expectations” and providing her notice of

termination of her employment on May 11, 2007, approximately one month after

her April 2007 protected activity.

Ms. Faragalla contends the district court erred in failing to find a causal

connection between her protected activity and several other alleged adverse

actions. Two of her contentions have merit. First, she argues the evidence

supports a reasonable inference that Mr. Getchell was aware of her April 2, 2007

protected activity and that he disciplined her for the Rope Incident four days later,

on April 6, in retaliation for her complaint of discrimination. She argues the

district court misconstrued her retaliation claim as relating only to the accusation

against her, rather than the disciplinary decision by Mr. Getchell. We agree

with Ms. Faragalla that the evidence supports a prima facie case of retaliation

based upon the latter.

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 Next Ms. Faragalla contends that Ms. McGee also retaliated against her for

submitting her discrimination claim. She points to her conversations with

Ms. McGee, as described in her affidavit:

I met with McGee about the first week of April. She denied my
request for administrative transfer. When I stated my belief that
DCSD is retaliating against me, just like CP did, [s]he said that I
shouldn’t say that or I’d look bad, and that they can terminate me for
performance issue[s]. I said but what they have on me can’t
terminate me, right? She replied what they have on you so far can’t
terminate you. I said I am Ok then? She said they can terminate you
for performance deficits. I said that they wouldn’t find anything, and
that I work really hard[.] She said they will have to work harder to
find performance deficits so that they can terminate you. After I
looked stunned or said excuse me, she said that if what they have on
me isn’t enough, they will need to work harder then to find, and to
document performance deficits. . . . When I later ran into McGee . . .
and told her that I was there to get transfer forms, she asked where I
was trying to transfer to. I said several posting[s] and gave
examples. She said that won’t happen. I tried to end the
conversation, and said hope to transfer soon, have a good day. She
said I hope you will have a better day somehow, but that will not
happen. I briefly froze, but then left[.]

R., Vol. 4 at 194 (emphasis omitted).

We conclude Ms. Faragalla presented sufficient evidence to support a prima

facie case of retaliation based on Ms. McGee’s statements. In Williams v.

W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007), we held that a

reasonable employee could find an employer’s threat to publicize scandalous

rumors about the employee, regardless of their veracity, coupled with the

employer’s actions to make good on the threat, was sufficient to dissuade the

employee from making a discrimination charge. Importantly, we also noted that

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lesser conduct could suffice to support a retaliation claim. See id. at 1090-91

& n.7.

DCSD maintains there is no threat in Ms. McGee’s statements. We

disagree. Ms. McGee is DCSD’s Director of Human Resources and she was the

person tasked with investigating Ms. Faragalla’s discrimination complaint.

Immediately after advising Ms. Faragalla not to say that DCSD was retaliating

against her because it would “look bad,” Ms. McGee told her that, if they did not

have a sufficient basis to do so yet, they would have to work harder to find and

document performance deficits so they could terminate her. Ms. Faragalla

interpreted Ms. McGee’s comments as a threat that DCSD would drum up

performance deficits if she continued to press her discrimination claims. Then, a

short time later, Ms. McGee flatly informed Ms. Faragalla that she would not be

able to obtain a transfer of position within DCSD. We conclude that

Ms. McGee’s statements could have dissuaded a reasonable employee in

Ms. Faragalla’s shoes from pursuing her discrimination charge.

iii. Legitimate Non-Discriminatory Reasons for
Adverse Actions

Having established a prima facie case of retaliation, the burden shifted to

DCSD to show a legitimate, nondiscriminatory justification for its disputed

actions. See Stover, 382 F.3d at 1070-71. DCSD asserted that it lowered

Ms. Faragalla’s performance rating and terminated her employment based upon

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her performance deficits and her failure to adhere to the PIP. The district court

found that DCSD satisfied its burden of production. Ms. Faragalla does not argue

in her opening brief that DCSD failed to come forward with evidence of

legitimate, non-discriminatory reasons for any of its materially adverse actions.

Instead, after challenging the district court’s conclusions regarding her prima

facie retaliation case, she next contends that the court erred in its assessment of

her pretext evidence. She has therefore waived consideration of any error in the

district court’s conclusion that DCSD satisfied its burden. See Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an

opening brief generally forfeits appellate consideration of that issue.”).

iv. Pretext

Ms. Faragalla contends that DCSD’s proffered non-discriminatory reasons

for its actions were pretextual. To establish a genuine issue as to pretext, she was

required to demonstrate that DCSD’s stated reasons were unworthy of belief. See

Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1065 (10th Cir. 2009).

[She] can meet this standard by producing evidence of such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.

Id. (quotation omitted).

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 Ms. Faragalla argues Ms. McGee’s alleged statement about DCSD’s plan to

fabricate performance deficits, combined with the implausibility of the allegations

DCSD made against her, supports an inference that DCSD fabricated her

performance deficits in order to discharge her. She maintains that DCSD’s

allegations against her regarding the Rope Incident and the Bathroom Incident

were implausible. But rather than developing this argument in her opening brief,

she primarily cites to arguments she made in her district court filings. And her

few citations to evidence in the record show only that she disagreed with

Mr. Getchell’s conclusions regarding these incidents. This is insufficient to show

pretext, because “[a] challenge of pretext . . . requires a court to look at the facts

as they appear to the person making the decision to terminate, not the aggrieved

employee.” Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (quotations

omitted).

The relevant inquiry is not whether [the decision-maker’s] proffered
reasons were wise, fair or correct, but rather we ask whether [he]
believed those reasons to be true and acted in good faith upon those
beliefs. Even a mistaken belief can be a legitimate, non-pretextual
reason for an employment decision. Accordingly, [his] good faith
perception of the employee’s performance is relevant, not plaintiff’s
subjective evaluation of her own relative performance.

Id. (citations, quotations, brackets and ellipsis omitted). “The reason for this rule

is plain: our role is to prevent intentional discriminatory hiring practices, not to

act as a ‘super personnel department,’ second guessing employers’ honestly held

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(even if erroneous) business judgments.” Young v. Dillon Cos., 468 F.3d 1243,

1250 (10th Cir. 2006).

The central question, then, is whether Ms. Faragalla presented any evidence

that Mr. Getchell did not honestly believe his conclusions related to the Rope

Incident and the Bathroom Incident. Her affidavit, which describes her contrary

versions of the relevant events, 3 does not establish the implausibility of

Mr. Getchell’s ultimate decisions, reached after weighing the conflicting

evidence, or that DCSD’s stated reasons were not held in good faith by

Mr. Getchell. See Piercy, 480 F.3d at 1200-01. 4 Because Ms. Faragalla failed to

establish that DCSD’s proffered reasons were pretextual, we affirm the district

court’s grant of summary judgment in favor of DCSD on her retaliation claims.

3
Ms. Faragalla admitted that she used a rope to keep two students in line,
but she denied that she placed it around a student’s body. She disagreed with
Mr. Getchell’s conclusion she had used poor judgment by using a rope, asserting
her approach is supported by research. Ms. Faragalla also admits that she left a
student unattended in a bathroom, but she asserts she asked co-workers to look
after the student in her absence and she disputes that the student wasn’t capable
of using the restroom on her own. See R., Vol. 4 at 193-94.
4
Ms. Faragalla also contends that Ms. McGee’s alleged statement, that
DCSD would work hard to find performance deficits, is evidence that the
allegations against her were false, because Ms. McGee “had the means and the
authority to fulfill her threat.” Aplt. Opening Br. at 19. But she points to no
evidence that Ms. McGee had any role in originating the allegations against her.
The undisputed record shows that the allegedly false allegations concerning the
Rope Incident and the Bathroom Incident were made by co-workers who claimed
to have witnessed the events. Nor does she tie Ms. McGee’s statement to a
reasonable inference that Mr. Getchell did not rely in good faith on her
co-workers’ reports of her conduct.

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 b. Hostile Work Environment Under Title VII and
§ 1981

A discrimination claim based on a hostile work environment is cognizable

under both Title VII and § 1981. See Ford v. West, 222 F.3d 767, 775 (10th Cir.

2000) (Title VII); Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998)

(§ 1981). A plaintiff must show “that a rational jury could find that the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Sandoval v. City of

Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004) (quotation omitted).

In making this determination, we consider the work
atmosphere both objectively and subjectively, looking at all the
circumstances from the perspective of a reasonable person in the
plaintiff’s position. We may consider the conduct’s frequency and
severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with
the plaintiff employee’s work performance.

Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008) (citation and

quotations omitted). Additionally, the harassment must be based on the plaintiff’s

protected class or stem from discriminatory animus toward her protected class.

See id. at 1139 (addressing claim of racially hostile work environment and stating

“harassment must be racial or stem from racial animus” (quotation and brackets

omitted)); see also Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)

(“General harassment if not racial or sexual is not actionable.”). The same

-21-
criteria apply to a claim of a hostile work environment under § 1981. See Witt,

136 F.3d at 1432.

Moreover, an employee must establish a basis for employer liability for the

conduct of its employees that creates a hostile work environment. Tademy,

520 F.3d at 1139. Employers may be liable under three different theories:

“[1] the negligence theory, under which the employer fails to remedy a hostile

work environment it knew or should have known about; [2] the actual authority

theory, under which an employee harasses another employee within the scope of

his employment; or [3] the apparent authority theory, under which the harassing

employee acts with apparent authority from the employer.” Id. (quotation

omitted).

The district court reviewed Ms. Faragalla’s evidence of a hostile work

environment based on her race, national origin, and religion and concluded that

(1) her unsworn interrogatory responses were not admissible evidence, (2) her

deposition testimony about religious harassment was too vague to support her

claim, and (3) her affidavit contained conclusory allegations of harassment by

unidentified individuals at unspecified times, that also were insufficient to

establish a hostile work environment. 5 The court further found that some of the

5
The court included in this category of vague and conclusory allegations
Ms. Faragalla’s claims of harassment relating to her ex-husband’s discrimination
lawsuit; her discrimination charge against CP; alleged constant mockery of her
(continued...)

-22-
comments described in her affidavit could not reasonably be construed as

stemming from racial or religious animus. It then concluded that the remaining

comments and actions she alleged were neither pervasive nor sufficiently severe

to alter the terms, conditions, or privileges of her employment. In addition, the

court found that she provided no evidence of a basis for employer liability.

Much of Ms. Faragalla’s contentions of error on this claim cite only to the

arguments she made in her district court filings. The remainder of her arguments

are without merit. She first asserts the district court erred in finding that certain

comments did not stem from discriminatory animus. In her affidavit she alleged

that Ms. Simon, who was apparently a co-worker,

asked me if I am going back to Egypt, and if I speak good Egyptian.
I said that I think of myself as American and am not going back to
Egypt. She said you are crazy. I asked where she was born, and she
said Ohio. I asked why she doesn’t go back there. She said that her
situation is different because Ohio is America, while I am from
Egypt.

R., Vol. 4 at 191. She also stated that Ms. Pennington and Ms. Gates often said

“go home” to her and to her child, id. at 190, 191. Relying on our decision in

Tademy, she argues that a reasonable jury could conclude these comments

evidenced discriminatory animus toward her based on her race and national

origin. In Tademy we held a reasonable jury could find that a manager’s

5
(...continued)
accent and comments about her looks, skin color, eating habits, and language; and
inquiries about her religion and why she does not take her children to church.

-23-
reference to an African-American employee as “boy” was racially motivated.

520 F.3d at 1142-43. We recognized that the term had been used to demean

African-American men throughout American history and that a jury could

conclude, based on the conflicting testimony regarding the context and tone, it

was used in a demeaning manner toward the plaintiff. Id.

Ms. Faragalla maintains, without citation of authority, that “[t]he ‘go home’

comment is historically known to convey racial hostility.” Aplt. Opening Br. at 23

n.25. But she provides no information in her affidavit about the context in which

these alleged statements were made, such that it could reasonably be inferred they

were racially motivated. As to Ms. Simon’s comments, she states only that she

believed them to be derogatory because they “directly spoke of [her] race and

national origin.” Id. at 22 n.21. Ms. Faragalla fails to show the district court

erred in holding these comments cannot reasonably be construed as stemming

from discriminatory animus. Not every reference to an employee’s race or

national origin in the workplace gives rise to an inference of discrimination. And

without further context, which she fails to provide, directing an employee to “go

home” cannot support a claim of a hostile work environment based on race.

Ms. Faragalla next contends that the district court erred in failing to find

that some of the incidents of alleged harassment by her co-workers were

sufficiently severe to alter the terms, conditions, or privileges of her employment.

She points to two incidents described in her affidavit, in which she alleged that

-24-
 Dickman made a student, P, who is of Greek Origin like her, draw a
big cross with the Greek Flag on it and hang it on [a] wall. Despite
my attempts to redirect P to work with me, Dickman persisted on
talking to him about the religious significance of the cross. The
cross was displayed on the classroom wall for days visible to
administrators.

R., Vol. 4 at 191 (Cross Incident). She also claimed that, when she told

“Margaret” and Ms. Dickman that she had discharged her student loans, “they

said that America is too kind to people like [her], who come from other countries,

take loans and then discharge them. Dickman said that her father [or grandfather

can’t recall] didn’t do that.” Id. at 191-92 (brackets in original). She argues that

these incidents, while not pervasive, were severe enough that a rational jury could

infer she was subjected to a hostile work environment. She relies on our holding

in Tademy that “a sufficiently severe episode may occur as rarely as once.”

520 F.3d at 1144 (quotation omitted). In that case we noted that unambiguously

racial epithets fall “on the more severe end of the spectrum.” Id. (quotations

omitted). We held that, although the alleged incidents were not pervasive, the

plaintiff produced sufficient evidence of severe harassment based on a

combination of racial epithets and the display of a noose—which we characterized

as “an egregious act of discrimination calculated to intimidate

African-Americans.” Id. at 1145.

We find no error in the district court’s determination that these two

incidents alleged by Ms. Faragalla were not sufficiently severe, either

-25-
individually or in combination, to support an inference of a hostile work

environment. Unlike the plaintiff in Tademy, she produced no evidence she was

ever subjected to unambiguously derogatory epithets during her employment with

DCSD. Nor did the Cross Incident include the type of intimidation inherent in the

display of a noose to an African American. See id. at 1142 (observing “the noose

is among the most repugnant of all racist symbols” (quotation omitted)). And her

co-workers’ critical comments about immigrants discharging debts under the

bankruptcy laws did not rise to the level of an extremely serious incident that is,

on its own, susceptible to an inference of a hostile work environment. See

MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005)

(noting “courts should filter out offhand comments, and isolated incidents (unless

extremely serious)”); Witt, 136 F.3d at 1433 (“The mere utterance of a statement

which engenders offensive feelings in an employee would not affect the

conditions of employment to a sufficiently significant degree to violate Title VII.”

(quotations, alteration, and brackets omitted)).

Finally, even if Ms. Faragalla had come forward with admissible evidence

of alleged actions or comments that were pervasive or sufficiently severe enough

to alter the terms, conditions and privileges of her employment, she fails to show

a basis for DCSD’s liability for the alleged hostile work environment. In order to

survive summary judgment, the record must support both an inference of a hostile

work environment and a basis for employer liability. Ford, 222 F.3d at 775. She

-26-
contends that DCSD negligently failed to remedy a hostile work environment of

which it knew or should have known. See Tademy, 520 F.3d at 1139.

Because an employer is only potentially liable for negligence
in remedying and preventing harassment of which it negligently
failed to discover, courts must make two inquiries: first into the
employer’s actual or constructive knowledge of harassment, and
second, into the adequacy of the employer’s remedial and
preventative responses to any actually or constructively known
harassment. We have held that actual knowledge will be
demonstrable in most cases where the plaintiff has reported
harassment to management-level employees. When a
management-level employee has not been notified, this court applies
what amounts to a negligence standard: highly pervasive harassment
should, in the exercise of reasonable care, be discovered by
management-level employees.

Id. at 1147 (citations, quotations, and brackets omitted).

Ms. Faragalla provides no citation to the record to support her assertion

there is evidence showing she notified DCSD of the harassment she allegedly

suffered. 6 She maintains DCSD should have known about the Cross Incident.

But even assuming DCSD was aware that a cross had been displayed in a

classroom for several days, and it knew or should have know it was placed there

in order to harass someone, we have concluded that the Cross Incident was not

sufficiently severe, on its own, to support a claim of hostile work environment. 7

6
She refers to “data,” which she says DCSD directed her to compile, and in
which she claims she “inadvertently documented most incidents of harassment.”
Aplt. Opening Br. at 24. But she does not indicate where such “data” exists in the
record.
7
Ms. Faragalla contends for the first time on appeal that DCSD is
(continued...)

-27-
We affirm the district court’s grant of summary judgment in favor of DCSD on

Ms. Faragalla’s hostile work environment claim.

c. Disparate Treatment under Title VII and § 1981

Ms. Faragalla alleged that DCSD discriminated against her on the basis of

her race, religion, and national origin by denying her job opportunities, subjecting

her to different terms and conditions of employment, giving her a negative

performance evaluation, and refusing to compensate her for additional duties.

She asserted further that the DCSD Board of Education unlawfully discriminated

against her when it endorsed her termination without due process. She had the

burden of initially establishing a prima facie case of race, religion, and national

origin discrimination by showing (1) she “belongs to a protected class”; (2) she

“suffered an adverse employment action”; and (3) “the challenged action took

place under circumstances giving rise to an inference of discrimination.” EEOC

v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). 8 One method by which a

plaintiff can establish the third element of a prima facie case is to show “the

employer treated similarly situated employees more favorably.” Id. at 800-01.

7
(...continued)
vicariously liable because she was harassed by supervisors, who took tangible
employment actions against her, and whose reports collectively caused her
termination. This court does not consider new theories on appeal. See
Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229, 1232-33 (10th Cir. 1997).
8
Ms. Faragalla’s § 1981 disparate-treatment claim is also analyzed under the
McDonnell Douglas burden-shifting framework. See Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1225 n.4 (10th Cir. 2000).

-28-
 The district court held that Ms. Faragalla failed to establish a prima facie

case of discrimination with respect to most of her disparate-treatment claims

because the record contained no competent evidence she was treated less

favorably than employees not in her protected classes. The court cited one

exception: her allegation she was subjected to different terms and conditions of

employment. The district court noted Ms. Faragalla’s claims that she was the

only EA given excessive copying assignments and a heavier caseload, and

assigned to clean the cafeteria. But the court concluded this evidence nonetheless

failed to establish a prima facie case of discrimination because she did not show

that she suffered an adverse employment action.

Ms. Faragalla asserts there is evidence she was treated less favorably by

DCSD than similarly situated, non-protected employees with regard to every

adverse employment action she alleged. But she fails to support this assertion

with citations to the record. 9 In fact, her multi-page argument addressing her

Title VII and § 1981 disparate-treatment claims includes only one citation to

evidence in the record. Alternatively, she contends she was not required to show

less-favorable treatment in order to establish her prima facie case. But again, she

9
Ms. Faragalla claims that DCSD refused to disclose records related to other
EAs who were terminated for failure to show progress on a PIP. She asserts these
records are crucial to determining whether DCSD treated her differently than
similarly situated, non-protected employees. But to the extent she purports to
appeal district court orders relating to this issue, her citations to her district court
filings are not sufficient appellate argument.

-29-
doesn’t point to other evidence supporting her claim. Finally, she maintains the

district court erred in determining her alleged additional duties did not amount to

an adverse employment action. We disagree. In this context, “[a]dverse

employment action includes 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.” Piercy,

480 F.3d at 1203. Ms. Faragalla doesn’t contend she was reassigned to a different

position with significantly different responsibilities. See Stinnett v. Safeway, Inc.,

337 F.3d 1213, 1217 (10th Cir. 2003) (holding transfer from job providing skilled

technical assistance to meat-wrapping job suggested adverse employment action).

And “a mere inconvenience or an alteration of job responsibilities” does not

constitute an adverse employment action. Piercy, 480 F.3d at 1203 (quotation

omitted). Ms. Faragalla does not dispute that some tasks within her job

description did not involve working directly with students. See R., Vol. 2 at 420.

In Piercy we held the employer’s assignment of certain duties to only some

employees holding the same position did not rise to the level of an adverse

employment action. See 480 F.3d at 1204 n.13. 10 We conclude the district court

10
Ms. Faragalla contends that “[b]eing forced to clean and change diapers
without gloves is adverse because it poses a significant risk of humiliation, not to
mention that it is a health hazard.” Aplt. Opening Br. at 25 n.28 (citation
omitted). But she did not allege she was the only EA forced to do these tasks
without gloves. In her affidavit she stated that Ms. Pennington insisted she
(continued...)

-30-
did not err in holding that Ms. Faragalla failed to establish a prima facie case of

race, religion, or national origin discrimination under Title VII and § 1981, and

we affirm the grant of summary judgment in favor of DCSD on these claims.

4. Claims Against CP

CP terminated Ms. Faragalla’s employment in September 2002, and she

filed a charge of discrimination against CP with the EEOC in October of that

year, claiming national-origin discrimination and retaliation. She did not file suit

against CP within 90 days of receiving a right-to-sue letter. She filed a new

charge of discrimination against CP in September 2007. In her Complaint she

alleged retaliation claims against CP under Title VII and § 1981, as well as

state-law claims for defamation and intentional infliction of emotional distress by

outrageous conduct. All of her claims rested on her belief that CP provided

negative information about her to prospective employers.

CP contended Ms. Faragalla could not establish a prima facie case of

retaliation because there was no evidence it took any materially adverse action

against her. CP submitted an affidavit from Dana Neal, who had been CP’s

Human Resources Director from the time Ms. Faragalla was first employed by

CP. Ms. Neal stated that CP’s policy is to direct to her any requests for

10
(...continued)
purchase her own gloves if wanted to use them. See R., Vol. 4 at 190. She points
to no evidence that Ms. Pennington treated any other EA differently.

-31-
information about prior CP employees and she indicated she had not responded to

any inquiry regarding Ms. Faragalla. Nor had CP’s President or the other two

employees in CP’s Human Resources Department responded to any inquiry

contrary to CP’s policy and practice. CP also cited Ms. Faragalla’s deposition

testimony stating that no prospective employer informed her it had contacted her

previous employers. In opposition to CP’s motion, Ms. Faragalla submitted her

affidavit and several emails, purportedly from prospective employers, responding

to her requests for any information they had received from her previous

employers. The district court found that her affidavit was conclusory and the

emails she submitted supported, rather than contradicted, CP’s evidence. 11

Therefore, the court held she failed to show a material-fact dispute regarding

whether she suffered a materially adverse action. The court relied on the same

conclusions in granting CP summary judgment on her state-law tort claims based

on the same allegations.

Ms. Faragalla contends there is a genuine issue whether CP provided

negative references. In her affidavit she stated, “I firmly believe that . . . CP is

retaliating against me by providing false negative references about me to others.”

R., Vol. 3 at 139. She based this conclusion on the following facts asserted in her

11
The district court noted Ms. Faragalla had not authenticated the emails, or
demonstrated the applicability of any hearsay exception, but it considered the
emails as if they were admissible.

-32-
affidavit: more than one employer expressed interest in hiring her after she was

terminated by DCSD; the interviewers informed her she was recommended for

hire; they all asked for information on her former employers and indicated they

would contact those employers; then they never called her back. See id. She

acknowledged in her affidavit, however, that human resources representatives

from each of these prospective employers subsequently told her they had not

contacted her references because she had not yet been recommended for hire. See

id. And the emails she submitted, purportedly from three school districts she had

applied to, also indicated they had not yet contacted her references. See id. at 132

(“In reply to your email, reference calls were not conducted because you have not

been recommended for hire as of yet.”); 133 (“[They] do not check ANY

references until they’ve offered you employment.”); 134 (“We have no knowledge

of any information gathered from your previous employers.”). 12 Nonetheless,

Ms. Faragalla surmises that her prospective employers contacted and received

references from CP containing false, negative information about her. 13 But her

12
Ms. Faragalla argues the district court read these emails out of the context
of the entire communications. She maintains the prospective employers only
denied contacting her “references” and did not respond regarding contacting her
former employers. But one of the emails explicitly states the respondent had no
information from previous employers and the other two were sent in response to
her specific request for any information provided by her previous employers.
Thus, Ms. Faragalla’s inference that the responses addressed only her
non-employer references is not reasonable.
13
Ms. Faragalla also contends that other employers had confidential
(continued...)

-33-
suppositions are insufficient to establish a genuine issue of material fact in

dispute with respect to any of her claims against CP. Cf. Regan-Touhy v.

Walgreen Co., 526 F.3d 641, 651-53 (10th Cir. 2008) (affirming summary

judgment on claim for unlawful disclosure of confidential information based on

speculation and surmise).

Finally, Ms. Faragalla contends the district court erred in granting CP

summary judgment on her discrimination claim based on CP’s termination of her

employment, to the extent her Complaint asserted such a claim. The district court

reasoned that, because she failed to file an action within 90 days of receiving a

right-to-sue letter from the EEOC on the claim after her termination in 2002, the

claim was barred. See Witt, 136 F.3d at 1429. Ms. Faragalla appears to argue

that her discriminatory-discharge claim agaisnt CP is not barred because CP’s

alleged retaliation is a continuing violation. But that doctrine no longer applies

with respect to discrete acts such as termination and retaliation. See Martinez v.

Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003). The district court did not err in

holding that a claim based on Ms. Faragalla’s discharge by CP would be untimely.

We affirm the district court’s grant of summary judgment in favor of CP on

all of Ms. Faragalla’s claims.

13
(...continued)
information about her that could only have been disclosed by CP. But she does
not identify the confidential information to which she refers.

-34-
 5. Claims Against DCFCE

When Ms. Faragalla requested union representation in a Level III grievance

hearing regarding her termination by DCSD, DCFCE declined to be involved on

the basis that she was not a member of the union. After her Level III hearing,

DCFCE sought the advice of counsel regarding whether to demand arbitration on

Ms. Faragalla’s behalf. DCFCE’s counsel first clarified that her non-membership

status was not a basis for the union to refuse to represent her. But counsel went

on to address the merits of her claim and ultimately opined that her case was very

weak and there was almost no chance for a successful arbitration of the grievance

by the union. Relying on counsel’s assessment, DCFCE declined to demand

arbitration on her behalf. Ms. Faragalla asserted in her Complaint that DCFCE

violated Title VII, § 1981, the Fifth and Fourteenth Amendments of the United

States Constitution, the National Labor Relations Act, and state law by refusing to

arbitrate her claims.

a. Title VII Claim

The district court granted DCFCE summary judgment on Ms. Faragalla’s

Title VII claim because she failed to exhaust her administrative remedies by filing

a charge against the union with the EEOC. Exhaustion of administrative remedies

is a jurisdictional prerequisite to filing a Title VII lawsuit. See Romero v. Union

Pac. R.R., 615 F.2d 1303, 1311 (10th Cir. 1980). And “each discrete incident of

[discriminatory] treatment constitutes its own unlawful employment practice for

-35-
which administrative remedies must be exhausted.” Martinez, 347 F.3d at 1210

(quotation omitted). After exhausting administrative remedies, an aggrieved party

may bring a civil action against the respondent named in the administrative

charge. Romero, 615 F.2d at 1311; see also 42 U.S.C. § 2000e-5(f)(1).

Ms. Faragalla does not assert that she named DCFCE as a respondent in any

of her EEOC complaints. Instead, she argues the district court erred because she

sufficiently alleged her discrimination claims against DCFCE in her EEOC filings

against DCSD. But she fails to provide any citation to evidence in the record in

support of this contention. Nor has she pointed to evidence establishing an

“identity of interest” between DCFCE and DCSD sufficient to give the union

notice of the charge and the EEOC opportunity to attempt conciliation, despite

her failure to name DCFCE. See Romero, 615 F.2d at 1311. In Romero we held

that “omission of a party’s name from the EEOC charge does not automatically

mandate dismissal of a subsequent action under Title VII.” Id. We listed four

factors relevant to whether a court has jurisdiction over a party not named before

the EEOC:

1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of
the EEOC complaint; 2) whether, under the circumstances, the
interests of a named [party] are so similar as the unnamed party’s
that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in
the EEOC proceedings; 3) whether its absence from the EEOC
proceedings resulted in actual prejudice to the interests of the
unnamed party; 4) whether the unnamed party has in some way

-36-
 represented to the complainant that its relationship with the
complainant is to be through the named party.

Id. at 1312 (quotation omitted); see also Vital v. Interfaith Med. Ctr., 168 F.3d

615, 620 (2d Cir. 1999) (applying same factors to hold no identity of interest

between former employer and union). The district court considered these factors

and concluded there was no evidence to support an identity of interest between

DCFCE and DCSD.

Ms. Faragalla addresses only the fourth factor, contending there is evidence

indicating DCFCE represented that its relationship with her was through DCSD.

She points to the email she received from Ms. Oslund on May 15, 2007:

I apologize for not responding to your emails sooner. I was out of
the office Monday, the 14 th. We were informed of your situation by
HR, but were not involved. I would like to point out that you were
not a union member at the time of your employment and as such, the
DCF is not obligated to investigate any aspect of your termination.

R., Vol. 4 at 45. But this email did not inform Ms. Faragalla that her relationship

with the union was to be through DCSD. Rather, Ms. Oslund told her that

DCFCE would not be involved in her dispute with DCSD. Moreover,

Ms. Faragalla concedes the record contains numerous direct communications

between her and DCFCE regarding whether the union would represent her in her

grievance with DCSD. We conclude the district court did not err in dismissing

Ms. Faragalla’s Title VII claim against DCFCE for lack of subject matter

jurisdiction based on her failure to exhaust administrative remedies.

-37-
 b. § 1981 Race Discrimination Claim

Ms. Faragalla alleged that DCFCE discriminated against her based on her

race by refusing to arbitrate her grievance with DCSD. DCFCE proffered, as its

non-discriminatory reason for declining to pursue arbitration on her behalf, that it

acted on its counsel’s advice regarding the weakness of her claims. She argues

generally that DCFCE failed to support this reason, and she also maintains she

raised an inference of pretext. She contends further that DCFCE could not have

believed its own reason or acted in good faith upon it, and that DCFCE’s reason

is false. But she fails to develop any of these arguments, citing only to the

arguments she made in her district court filings.

Ms. Faragalla also argues the district court erred in holding her claims were

distinguishable from the discrimination claims in Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987), superceded by statute on other grounds as recognized in

Harris v. Allstate Ins. Co., 300 F.3d 1183 (10th Cir. 2002). In Goodman, the

Supreme Court upheld a trial-court verdict in favor of plaintiffs on their claims

against a union for intentional discrimination in violation of Title VII and § 1981.

The plaintiffs presented evidence that the union had a policy of not filing any

grievances involving racial discrimination claims, despite the union’s awareness

-38-
that the employer was discriminating against black employees. See id. at 669.

The Court concluded:

[Title VII and § 1981] do not permit a union to refuse to file any and
all grievances presented by a black person on the ground that the
employer looks with disfavor on and resents such grievances. It is
no less violative of these laws for a union to pursue a policy of
rejecting disparate-treatment grievances presented by blacks solely
because the claims assert racial bias and would be very troublesome
to process.

Id. at 669. As the district court noted, however, Ms. Faragalla presented no

evidence that DCFCE had a policy or practice of declining to assert

discrimination claims. While she contends the holding in Goodman is not limited

to “pattern and practice” evidence, and that the facts of her claim suffice to

establish intentional discrimination under the reasoning of that case, she once

again fails to cite to any evidence in the record. We affirm the district court’s

grant of summary judgment to DCFCE on Ms. Faragalla’s § 1981

race-discrimination claim.

c. Constitutional Claims

Ms. Faragalla asserted that DCFCE violated her Fifth and Fourteenth

Amendment rights to due process by refusing to arbitrate her grievance with

DCSD. The district court granted summary judgment to DCFCE on these claims,

brought pursuant to 42 U.S.C. § 1983, because she failed to demonstrate the union

was acting under color of state law. A labor union is generally not considered a

state actor without evidence that it acted in concert with the state. Montgomery v.

-39-
City of Ardmore, 365 F.3d 926, 942 (10th Cir. 2004). “A private actor acts under

color of state law when the private actor is a willful participant in joint activity

with the State or its agents.” Id. (quotation omitted).

Ms. Faragalla maintains the record supports an inference that DCFCE and

DCSD acted in concert to violate her constitutional rights. She points to the

May 15, 2007 email from Ms. Oslund informing her DCFCE would not be

involved in her grievance with DCSD because she was not a union member. See

R., Vol. 4 at 45. She also relies on a statement by Ms. McGee that DCFCE’s only

role was to ensure that DCSD followed due process when terminating her.

Neither of these statements supports an inference that DCFCE acted in concert

with DCSD to deprive Ms. Faragalla of her constitutional rights. Rather, they

tend to disprove concerted action by showing that DCFCE’s role was independent

of and adverse to DCSD. The remainder of Ms. Faragalla’s allegations of

conspiracy are conclusory and therefore insufficient to support her contention of

concerted action. See Montgomery, 365 F.3d at 942. The district court did not

err in concluding Ms. Faragalla failed to establish that DCFCE was acting under

color of state law when it declined to arbitrate her grievance. We affirm the grant

of summary judgment in favor of DCFCE on her § 1983 claims.

d. State-law Claims

Having granted DCFCE summary judgment on all of Ms. Faragalla’s

federal claims, the district court declined to exercise supplemental jurisdiction

-40-
over her remaining state-law claims pursuant to 28 U.S.C. § 1367(c)(3). She

argues the district court’s continuing jurisdiction over her federal claims against

DCSD gave it supplemental jurisdiction over her interrelated state-law claims

against DCFCE. But the district court also approved and adopted the magistrate

judge’s recommendation to grant DCSD summary judgment on all of her claims.

Therefore, the court’s decision to decline to exercise supplemental jurisdiction

over her remaining state-law claims against DCFCE was appropriate.

III. Appeal Number 10-1433 - Award of Costs

Federal Rule of Civil Procedure 54(d)(1) provides: “Unless a federal

statute, these rules, or a court order provides otherwise, costs--other than

attorney’s fees--should be allowed to the prevailing party.” “This court has held

that Rule 54(d) creates a presumption that the prevailing party shall recover

costs.” Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995). But “[a]

prevailing party bears the burden of establishing the amount of costs to which it is

entitled. Our precedents establish that the amount a prevailing party requests

must be reasonable.” In Re Williams Securities Litigation—WCG Subclass,

558 F.3d 1144, 1148 (10th Cir. 2009) (quotation and citation omitted). Under

that test, costs for materials that “merely added to the convenience of counsel or

the district court” are not recoverable. Id. at 1147 (quotation omitted).

Accordingly, a district court should carefully scrutinize the items proposed by a

prevailing party as costs. Id. “Once a prevailing party establishes its right to

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recover allowable costs, however, the burden shifts to the non-prevailing party to

overcome the presumption that these costs will be taxed.” Id. at 1148 (quotation

omitted).

A prevailing party initially files a bill of costs with the district court clerk,

rather than with the court. See id. at 1146. The clerk may then issue an order

taxing costs in favor of the prevailing party. See id. The clerk’s order is

reviewable by the district court on motion by the party against whom costs were

taxed. See Rule 54(d)(1). The district court’s review of a clerk’s order is de

novo. See In Re Williams Securities, 558 F.3d at 1147.

Here each defendant filed a bill of costs with the district court clerk,

providing notice of a telephonic hearing to be held on September 30, 2009, at

which time the clerk would tax costs. The deputy clerk contacted Ms. Faragalla

by phone on that date, but she declined to participate in the hearing. She asserts

that, because she believed the hearing would not go forward in light of her motion

to stay the judgment pending appeal, she had not arranged for childcare and was

therefore unable to take part in the hearing. The deputy clerk went forward with

the hearing without Ms. Faragalla, denying her request for a continuance, and

entered an order taxing costs in favor of defendants totaling $1,991.65.

Ms. Faragalla filed a timely motion to strike the clerk’s order, to which the

defendants filed a response. Almost a year later, the district court denied

Ms. Faragalla’s motion because she “[did] not state any valid basis to challenge

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either the procedures used to award costs or the substance of the costs awarded by

the Clerk of the Court.” R. at 95.

Ms. Faragalla raises on appeal essentially the same arguments she made in

the district court. She asserts that the award of costs was procedurally defective

because she did not have notice of and was not permitted to participate in the

hearing with the deputy clerk on September 30, 2009. She also argues that

defendants failed to prove that the transcript and copies for which the district

court awarded costs were “necessarily obtained for use in the case.” 28 U.S.C.

§ 1920(2) & (4). Finally, she contends that the district court failed to review the

record de novo and improperly issued a summary order denying her motion.

We review a district court’s award of costs for an abuse of discretion. See

In Re Williams Securities, 558 F.3d at 1148. “A district court abuses its

discretion where it (1) commits legal error, (2) relies on clearly erroneous factual

findings, or (3) where no rational basis exists in the evidence to support its

ruling.” Id. Ms. Faragalla has not shown that the district court abused its

discretion in awarding defendants their costs in this case. First, her contentions

regarding the district court’s review of the clerk’s order have no merit. She

provides no basis for this court to conclude that the district court failed to conduct

a de novo review. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997)

(“We assume that the district court performed its review function properly in the

absence of evidence to the contrary.”). And the court’s summary decision,

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combined with the record, is sufficient to permit our meaningful review. See

Tilton v. Capital Cities/ABC, Inc. 115 F.3d 1471, 1474 (10th Cir. 1997) (holding

more detailed explanation for decision to award costs unnecessary where “record

contains no evidence that the district court abused its discretion in taxing [costs]

to plaintiff”). Nor has Ms. Faragalla shown that the district court abused its

discretion in awarding costs after the deputy clerk refused to postpone the hearing

scheduled for September 30, 2009. It is clear that Ms. Faragalla had notice of the

scheduled hearing, yet she made no arrangements to be able to participate,

incorrectly assuming instead that it would not go forward. Moreover, all of her

arguments challenging the taxation of costs, which she presumably would have

raised during the clerk’s hearing, were subject to de novo review by the district

court.

Ms. Faragalla’s contentions regarding the taxation of transcription fees and

copying costs are likewise without merit. Fees and costs for such materials that

were “necessarily obtained for use in the case” are taxable. 28 U.S.C. § 1920(2),

(4). She argues that the district court erred in awarding defendants transcription

fees for her deposition, excerpts of which defendants attached as exhibits to their

summary judgment motions. She maintains that her deposition was not

“necessarily obtained for use in the case” because defendants knew when they

deposed her that her testimony would be inadmissible based on her mental state at

that time. But she did not argue in the district court, nor did the district court

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hold, that her deposition was inadmissible on this basis. We conclude the district

court did not abuse its discretion in awarding defendants transcription costs

associated with Ms. Faragalla’s deposition. See In re Williams Securities, 558

F.3d at 1148 (“Our cases establish that if deposition transcripts . . . were offered

into evidence, were not frivolous, and were within the bounds of vigorous

advocacy, costs may be taxed.”) (quotations omitted).

She also challenges the district court’s award of costs to defendants for

copies of their summary judgment motions and exhibits, as well as copies of the

exhibits she attached to her response to DCSD’s summary judgment motion. In

support of the reasonableness of these costs, defendants indicated they made

copies of their summary judgment motions in order to serve Ms. Faragalla, a pro

se party, by mail. DCSD further represented that it made copies of her summary

judgment exhibits because she did not submit electronic copies of them to the

court or email them to DCSD. Ms. Faragalla argues, as she did in the district

court, that these copies were not necessarily obtained for use in the case because

defendants could have served her with their summary judgment motions by email

and she could have provided copies of her exhibits to DCSD at a lower cost. Her

contentions fail to establish an abuse of discretion by the district court in

concluding that these copying costs were for materials necessarily obtained for

use in the case. Despite her assertion that all service in this case was effected by

email, our review of the record on appeal indicates that, with very few exceptions,

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defendants consistently served her with hard copies by regular mail. And she

does not dispute that she filed with the court only hard copies of her exhibits in

opposition to DCSD’s summary judgment motion. Nor does she provide a basis,

other than her own assertion, that the copying costs incurred by defendants were

unreasonably high.

Ms. Faragalla has not shown a legal error, clearly erroneous factual finding,

or lack of a rational basis in the evidence to support the district court’s award of

costs to defendants. Absent an abuse of discretion, we affirm the district court’s

order.

IV. Conclusion

The judgment of the district court is AFFIRMED. Ms. Faragalla’s Motion

for Stay of Judgment Pending Appeal is DENIED as moot. We DENY her

application to proceed in forma pauperis on appeal in case number 10-1433 on the

same basis as the district court and direct her to immediately pay in full the filing

and docket fee in that appeal.

Entered for the Court

Mary Beck Briscoe
Chief Judge

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