Brown v. Lowe's Home Centers

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 8, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
GEORGE W. BROWN,

Plaintiff-Appellant,

v. No. 14-4133
(D.C. No. 2:13-CV-00072-DAK)
LOWE’S HOME CENTERS, (D. Utah)

Defendant-Appellee.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
_________________________________

Mr. George Brown is an African-American who worked for Lowe’s

Home Centers. One day, Mr. Brown and a Lowe’s cashier yelled at each

other, prompting Lowe’s management to investigate the two employees’

conduct. During the investigation, Mr. Brown reported that he had heard

two fellow employees use the term “nigger,” prompting Mr. Brown to

complain to a supervisor. Lowe’s placed both Mr. Brown and the cashier

*
Oral argument would not significantly aid in the decision. Thus, the
Court will decide the appeal based on the briefs. See Fed. R. App. P.
34(a)(2).

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
10th Cir. R. 32.1(A). But the order and judgment can be cited for its
persuasive value.
on probation (which Lowe’s calls a “final notice”). Unhappy with this

status, Mr. Brown complained of race discrimination to a Lowe’s

supervisor.

About two months later, Mr. Brown came to work impaired. Mr.

Brown attributed the impairment to back pain; Lowe’s attributed it to

intoxication and fired him. Mr. Brown filed an administrative charge,

alleging race discrimination and retaliation. The administrative charge was

dismissed on multiple grounds, including timeliness.

The dismissal led Mr. Brown to sue under Title VII of the Civil

Rights Act, 1 claiming disparate treatment, retaliation, and presence of a

hostile work environment. The district court granted summary judgment to

Lowe’s. On appeal, we address three issues:

1. Summary Judgment on the Claim of Disparate Treatment. Mr.
Brown claims disparate treatment when Lowe’s put him on
“final notice” and terminated him roughly two months later.
The claim involving placement on final notice is unsupported
in the record because Mr. Brown failed to present the district
court with any instances of more favorable treatment of white
employees. On the claim involving termination, Mr. Brown
failed to timely exhaust administrative remedies. Thus, on the
disparate-treatment claim, we conclude that the district court
properly granted summary judgment to Lowe’s.

1
In his opening brief, Mr. Brown adds that he believes Lowe’s
violated the Utah Antidiscrimination Act of 1995. Appellant’s Opening Br.
at 7 (ECF pagination). But Mr. Brown did not allege violation of this law
in the complaint or in his response to Lowe’s summary judgment motion.
See R., Vol. I at 21-44; id., Vol. V at 6-63. Thus, he cannot prevail based
on an appeal point involving the Utah Antidiscrimination Act of 1995. See
Braswell v. Cincinnati Inc., 731 F.3d 1081, 1092 (10th Cir. 2013).
2
 2. Summary Judgment on the Retaliation Claim. Mr. Brown also
alleges retaliation, claiming he was put on final notice and
terminated after complaining about a coworker’s use of the
term “nigger.” This claim is unsupported with regard to
placement on final notice, for the undisputed evidence shows
that Lowe’s had already been investigating Mr. Brown’s
conduct before his complaint of race discrimination. On the
claim involving termination, Mr. Brown failed to timely
exhaust administrative remedies. Thus, we conclude that the
district court properly granted summary judgment to Lowe’s on
the retaliation claim.

3. Summary Judgment on the Claim of a Hostile Work
Environment. Mr. Brown also alleges a hostile work
environment based on a racial slur, the firing of
nonwhite employees, and antagonistic conduct by coworkers.
These allegations are not enough to create a hostile work
environment. Thus, we conclude that the district court properly
granted summary judgment to Lowe’s on this claim.

Based on these conclusions, we affirm.

I. Standard of Review

On each issue, we engage in de novo review, considering the

evidence in the light most favorable to Mr. Brown. EEOC v. C.R. England,

Inc., 644 F.3d 1028, 1037 (10th Cir. 2011). On summary judgment, the

issue is whether Lowe’s has shown (1) the absence of a genuine issue of

material fact and (2) entitlement to judgment as a matter of law. Id.

II. Claims Involving Disparate Treatment and Retaliation

Mr. Brown complains of disparate treatment and retaliation when

Lowe’s put him on final notice and terminated his employment. On both

theories, the district court properly granted summary judgment to Lowe’s.

3
 A. Placement on Final Notice

For the disparate-treatment and retaliation claims involving

placement on final notice, Mr. Brown failed to present evidence creating

triable issues of fact.

1. Disparate Treatment

On the disparate-treatment claim, Mr. Brown alleges that he was

treated more harshly than white employees. The alleged disparity would be

actionable only if the white employees were similarly situated. See Jones

v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000).

Mr. Brown was disciplined for verbal abuse after engaging in a

yelling match with a cashier. Under Lowe’s policy, verbal abuse

constitutes a “Class A” violation, which ordinarily results in termination.

R., Vol. II at 156. Rather than terminate Mr. Brown, Lowe’s put him on

“final notice,” which would ordinarily lead to termination if the employee

committed another policy violation within one year. Id. 2 Lowe’s cited Mr.

Brown for another policy violation about two months later and terminated

him.

Mr. Brown complains that Lowe’s treated white employees more

leniently even though they allegedly

2
Mr. Brown argues that the warning was premature because it
involved a “final notice” prior to any other disciplinary sanctions. But the
“final notice” was imposed for a violation classified by Lowe’s as “Class
A.” Under Lowe’s written policy, “‘Class A’ violations normally result in
immediate termination.” Id.
4
  verbally abused a store manager,

 acted insubordinately toward Mr. Brown,

 verbally abused and intimidated Mr. Brown,

 accused Mr. Brown of misconduct,

 lied to a Lowe’s supervisor, and

 conspired to undermine performance of a task assigned to
another Lowe’s employee.

According to Mr. Brown, all of these incidents involved white employees

and resulted in “little or no” discipline. Appellant’s Opening Br. at 13

(ECF pagination).

Responding to Lowe’s summary judgment motion, Mr. Brown had an

obligation to cite the parts of the record that he relied on. Fed. R. Civ. P.

56(c)(1)(A); DUCivR 56-1(c)(2)(C). But in his response to the summary

judgment motion, he did not mention any of these incidents. R., Vol. V at

6-63. 3

Instead, he relied solely on the episode when Lowe’s placed him and

a cashier on “final notice” for verbal abuse. On its face, the disciplinary

3
In attaching documents to his summary judgment brief, Mr. Brown
included an affidavit discussing many of these alleged incidents. Id.at 200-
04. But in the brief itself, Mr. Brown did not refer to the affidavit for this
purpose. Thus, the district court had no reason to comb through Mr.
Brown’s exhibits to find the references in his affidavit to leniency toward
white employees.
5
sanctions for these two employees do not signal disparate treatment, for

the sanctions were identical: placement on final notice.

Mr. Brown argues that the cashier should have been disciplined more

harshly because she was already on final notice. On this issue, Lowe’s

presented the district court with evidence that the cashier was not on final

notice when the infraction took place. To counter that evidence in district

court, Mr. Brown relied solely on pages 89 and 160 of his deposition. Id.

at 14 n.3. These page references do not create a genuine issue of fact about

the cashier’s disciplinary status.

The matter is mentioned in Mr. Brown’s deposition on page 160, but

not page 89. On page 160, Mr. Brown was asked how he knew the cashier

was already on final notice; he answered that the cashier had said she was.

Id.at 106; see also Appellant’s Opening Br. at 19 (ECF pagination)

(statement by Mr. Brown that the cashier had confessed to Mr. Brown that

she already had a “final warning”). But the cashier’s out-of-court statement

to Mr. Brown would constitute inadmissible hearsay, which cannot be used

to oppose summary judgment. See Riggs v. AirTran Airways, Inc., 497 F.3d

1108, 1121 (10th Cir. 2007) (stating that a coworker’s statement cannot be

used in summary judgment proceedings because it constitutes inadmissible

hearsay). Without the cashier’s alleged statement, Mr. Brown lacks any

admissible source of personal knowledge regarding the cashier’s

disciplinary status. See In re Grandote Country Club Co., 252 F.3d 1146,

6
1152 (10th Cir. 2001) (holding that the plaintiff cannot oppose summary

judgment based on his own testimony when his personal knowledge was

based on another person’s inadmissible hearsay statement).

Without evidence of unequal treatment of other individuals under

similar circumstances, we conclude that the district court properly granted

summary judgment to Lowe’s on the claim of disparate treatment for

putting Mr. Brown on final notice.

2. Retaliation

Mr. Brown also claims that Lowe’s put him on final notice to

retaliate for his complaint about race discrimination.

To survive summary judgment on this claim, Mr. Brown had to

present evidence of a causal connection between his complaint and Lowe’s

decision to put him on final notice. See Argo v. Blue Cross & Blue Shield

of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Mr. Brown failed to

present any such evidence.

Mr. Brown alleges that (1) he engaged in protected activity by

complaining about a coworker’s use of the term “nigger” and (2) Lowe’s

put Mr. Brown on final notice as a result. But when Mr. Brown voiced his

complaint, he was already being investigated for his confrontation with the

cashier. Because the investigation preceded the complaint, the Court

cannot infer a retaliatory motive. See Morgan v. Hilti, Inc., 108 F.3d 1319,

1324 (10th Cir. 1997) (holding that the plaintiff failed to create an

7
inference of pretext when the disciplinary actions “simply completed the

disciplinary process already set in motion” before the plaintiff had engaged

in protected speech). In the absence of evidence of a retaliatory motive,

Lowe’s was entitled to summary judgment on Mr. Brown’s claim that

Lowe’s placed him on final notice to retaliate for his complaint of race

discrimination.

B. Termination of Employment

In claiming disparate treatment and retaliation, Mr. Brown also

points to his termination. But he failed to timely exhaust these claims as

they relate to his termination.

1. The Requirement of Timely Exhaustion

Mr. Brown had to exhaust these claims by filing an administrative

charge with the Utah Antidiscrimination and Labor Division. That filing

was due 300 days after the underlying conduct. 42 U.S.C. § 2000e-5(e)(1)

(2012); see Davidson v. America Online, Inc., 337 F.3d 1179, 1183 n.1

(10th Cir. 2003). Mr. Brown failed to meet this deadline, for he waited 360

days to file the administrative charge relating to his termination.

2. Mr. Brown’s Failure to Timely Exhaust the Disparate-
Treatment and Retaliation Claims Relating to His
Termination

Trying to avoid the time-bar, Mr. Brown argues that the claims

trigger the Lilly Ledbetter Fair Pay Act of 2009 and the continuing

violation doctrine. We reject these arguments.

8
 a. The Lilly Ledbetter Fair Pay Act

The Lilly Ledbetter Fair Pay Act does not apply. This law addresses

claims for employment compensation, not employment termination. See

Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630 (10th Cir. 2012).

Mr. Brown argues that the statute broadly covers practices beyond

compensation decisions, pointing to the statutory language:

“discriminatory compensation decision or other practice.” 42 U.S.C.

§ 2000e-5(e)(3)(A) (2012). In Mr. Brown’s view, the phrase “other

practice” broadens the statute to encompass decisions not strictly confined

to “compensation.”

We rejected this view in Almond v. Unified School District, 665 F.3d

1174, 1180 (10th Cir. 2011). There we held that the phrase “other practice”

applies only to “claims of unequal pay for equal work.” Almond, 665 F.3d

at 1180; see also Daniels, 701 F.3d at 630-31 (holding that a claim

involving failure to promote does not constitute an “other practice”

because it is not “compensation related”). Under Almond, Mr. Brown

cannot avoid the time-bar by invoking the Lilly Ledbetter Fair Pay Act.

b. The Continuing Violation Doctrine

Mr. Brown’s reliance on the continuing violation doctrine is also

misguided, for this doctrine does not apply to claims involving disparate

treatment or retaliation. Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th

Cir. 2003).

9
 c. Summary

After his firing, Mr. Brown waited 360 days to file an administrative

claim. Because the filing was due in 300 days, we cannot consider the

termination in connection with the claims of disparate treatment and

retaliation.

3. The District Court’s Characterization of Timeliness as a
Jurisdictional Defect

The district court correctly regarded the administrative charge as

untimely. In the district court’s view, the delay prevented the district court

from obtaining jurisdiction. But this characterization was incorrect, for the

failure to timely exhaust is not jurisdictional. See Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982) (“We hold that filing a timely

charge of discrimination with the EEOC is not a jurisdictional prerequisite

to suit in federal court, but a requirement that, like a statute of limitations,

is subject to waiver, estoppel, and equitable tolling.”); see also Harms v.

I.R.S., 321 F.3d 1001, 1009 (10th Cir. 2003) (citing Zipes and noting that

“the failure to timely exhaust administrative remedies is not a

jurisdictional deficiency but rather is in the nature of a violation of a

statute of limitations”).

Because the 300-day deadline is not jurisdictional, it may be subject

to equitable tolling when an employer or agency actively engages in

deception. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). But Mr.

10
Brown does not claim deception. Instead, he urges equitable tolling on

grounds that he had no attorney and was under a state administrative

agency’s control. These arguments are invalid for two reasons.

First, the absence of a party’s attorney does not trigger equitable

tolling. See id. at 958.

Second, the Utah Antidiscrimination and Labor Division did not have

an obligation to decide the matter more quickly than it did. The agency

may have waited longer than necessary to issue its decision, but that does

not constitute deception.

As a result, Mr. Brown failed to justify equitable tolling and the

administrative charge was not timely. His delay prevents us from

considering the disparate-treatment and retaliation claims arising out of the

termination.

III. Claims Involving a Hostile Work Environment

For the claim of a hostile work environment, Mr. Brown had to

present evidence supporting a finding that his workplace was permeated

with discriminatory intimidation, ridicule, and insults so severe or

pervasive that they created an abusive working environment. MacKenzie v.

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

Mr. Brown failed to satisfy this burden. He points to several

episodes, but only three are pertinent: a single racial slur during a three-

year period, the firing of nonwhite employees over an eight-month period,

11
and antagonistic conduct by coworkers. These episodes do not constitute an

abusive working environment.

The single racial slur is insufficient as a matter of law. See Morris v.

City of Colo. Springs, 666 F.3d 654, 665-69 (10th Cir. 2012) (holding that

three isolated incidents of “sporadic . . . slurs,” combined with allegations

of yelling, did not establish a hostile work environment).

Mr. Brown also alleges that in an eight-month period, the store

manager fired only nonwhite employees. But Mr. Brown acknowledges

plausible, race-neutral explanations for the firings, even if he finds the

explanations unconvincing. Mr. Brown may have subjectively felt that his

job was in jeopardy because of his race, but his suspicion that the firings

were racially motivated was speculative. And that speculation is not

enough to prevent summary judgment. See Alires v. Amoco Prod. Co., 774

F.2d 409, 411 (10th Cir. 1985).

Antagonistic conduct by coworkers was also insufficient to create a

triable issue of fact. The alleged antagonism manifested itself in race-

neutral disagreements between Mr. Brown and his coworkers. But ordinary

workplace disagreements do not suggest a hostile work environment. See

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

In these circumstances, we conclude that the district court properly

granted summary judgment to Lowe’s on the claim of a hostile work

environment.

12
IV. Disposition

The district court’s judgment is affirmed.

Entered for the Court

Robert E. Bacharach
Circuit Judge

13