FILED
United States Court of Appeals
Tenth Circuit
July 28, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
MONICA WHITE,
Plaintiff-Appellant,
v. No. 10-1481
(D.C. No. 1:08-CV-01874-MSK-KMT)
EDWARD T. SCHAFER, Secretary, (D. Colo.)
United States Department of
Agriculture,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.
Monica White, a former employee of the National Forest Service, appeals
from the district court’s entry of summary judgment in favor of the Secretary of
the United States Department of Agriculture, on her claims of sex discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§§ 2000e to 2000e-17, and violations of the Privacy Act, 5 U.S.C. § 552a(b). 1 We
have reviewed the district court’s opinion and order de novo under the standards
set forth in Rule 56 of the Federal Rules of Civil Procedure 2 and affirm. 3
As a starting point, we commend the district court for its thorough and
well-reasoned published opinion and order granting the Secretary’s motion for
summary judgment. We also adopt and incorporate by reference its lengthy
recitation of the background facts pertaining to White’s claims. See White v.
Schafer, 738 F. Supp. 2d 1121, 1125-31 (D. Colo. 2010). Having carefully
considered the summary judgment record and the arguments advanced by White
on appeal, we affirm the district court’s decision for substantially the same
reasons it articulated. Id. at 1131-42.
Our analysis of the issues raised on appeal is limited. White is foreclosed
from asserting disparate treatment and retaliation claims under Title VII based on
the changes in her job responsibilities, about which she complained in January
2006. The district court explicitly found she had only exhausted the disparate
1
In the district court proceedings, White asserted an additional Privacy Act
claim under 5 U.S.C. § 552a(e)(10), but she has abandoned the claim on appeal.
See Aplt. Opening Br. at 18 n.7.
2
Following the entry of the district court’s opinion and order on September
7, 2010, Rule 56 of the Federal Rules of Civil Procedure was amended, effective
December 1, 2010. However, none of the amendments are material to the issues
in this appeal.
3
Our jurisdiction derives from 28 U.S.C. § 1291.
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treatment and retaliation claims she made in her administrative Equal
Employment Opportunity (EEO) case, to wit: those related to the separate and
distinct changes in her job responsibilities which occurred in May 2006.
Id. at 1131-33. She has utterly failed, in either her opening or reply brief, to
challenge the district court’s ruling that her January 2006 disparate treatment and
retaliation claims had not been exhausted. See LifeWise Master Funding v.
Telebank, 374 F.3d 917, 927 n.10 (10th Cir. 2004) (holding appellant waived
right to appeal rulings of the district court it did not substantively address in its
opening brief). Specifically, she has made absolutely no showing regarding the
nature of the claims actually litigated in her EEO case, 4 and we decline to scour
the record in an attempt to discover those critical facts. Accordingly, like the
district court, we limit our analysis of White’s disparate treatment and retaliation
claims to “sex discrimination and retaliation, in the form of Mr. Yancey deciding
on [May] 22, 2006 to disregard the terms of the mediation agreement [entered
into on February 28, 2006] and assign her to more than 50% range work.” White,
738 F. Supp. 2d at 1133.
With regard to properly preserved and exhausted disparate treatment and
retaliation claims – the changes in White’s job responsibilities which occurred in
4
Although White has set forth arguments in her reply brief explaining why
her earlier claims based on changes in her job responsibilities are not time-barred,
see Aplt. Reply Br. at 12-14, she has not demonstrated the earlier claims were in
fact litigated in the EEO proceedings she commenced on May 25, 2006.
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May 2006 – we adopt the reasoning of the district court. The decision to increase
White’s “range” duties was not an adverse employment action for purposes of
either her disparate treatment claim or her retaliation claim. Id. at 1133-36. Her
job duties historically included a significant amount of range work, so the
increase was not a significant or material change to the terms and conditions of
her employment.
White’s opening brief claims the corresponding decrease in her “wildlife”
duties made her less competitive for other job opportunities, but her argument
regarding lost job opportunities is based solely on several lines of conclusory
testimony in her EEO case. See Aplt. Opening Br. at 27 (citing Aplt. App.,
Vol. II at 437, p. 97:19-98:3).
With regard to her hostile work environment claim, we again agree with the
district court’s analysis of the allegedly discriminatory comments White
attributed to her supervisors and coworkers. See White, 738 F. Supp. 2d
at 1137-39. White failed to produce sufficient evidence demonstrating her
exposure to an “objectively” hostile work environment. Id. at 1139 (emphasis
omitted).
Finally, to support her Privacy Act claim, White relies on the deposition
testimony of Jack Neuman. See Aplt. Opening Br. at 57. However, as correctly
noted by the Secretary in his response brief, see Aplee. Br. at 57-58, Neuman’s
testimony does not establish that he “retrieved” White’s EEO Record of
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Investigation from a “system of records” as required to establish a violation of the
Privacy Act, see 5 U.S.C. § 552a(a)(5) and (b). Further, even if “[t]he U.S.
Department of Agriculture [has] specifically identified employee complaints of
discrimination and investigation reports into those complaints as records it
maintains in a system of records . . .,” Aplt. Opening Br. at 57 (citing
7 C.F.R. § 1.123), White has nonetheless failed to point to specific record
evidence showing such a system of records existed for purposes of this case.
Simply put, as the district court explained, “[t]he requirement that the disclosed
record have been obtained from a ‘system of records’ is a specific, fact-based
inquiry that examines how the information was obtained in the particular
circumstances of the case,” White, 738 F. Supp. 2d at 1141, and White failed to
make such a specific showing.
AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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