FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
LEONARD ENGLISH,
Plaintiff - Appellant,
No. 20-1010
v. (D.C. No. 1:17-CV-02548-MSK-NRN)
(D. Colo.)
SMALL BUSINESS
ADMINISTRATION; JOVITA
CARRANZA, Administrator of the Small
Business Administration,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Leonard English, appearing pro se, appeals the district court’s grant of
summary judgment to defendants on his claims of race discrimination and retaliation
in violation of Title VII of the Civil Rights Act, see 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a), and the district court’s denial of his Motion to Alter or Amend Judgment.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
We have jurisdiction under 28 U.S.C. § 1291 and affirm for substantially the same
reasons stated in the district court’s opinions and orders.
I. BACKGROUND 1
English is an African-American who began working in 2007 for the United
States Small Business Administration (SBA) as a Surety Bond Guarantee Specialist
in the SBA’s Denver Office of Surety Guarantees. During the relevant time
English’s first-level supervisor was Jennifer Vigil, who is Caucasian, and his
second-level supervisor was Peter Gibbs, who is African-American.
English claims he was subject to racial discrimination and retaliation that
began after he complained in April 2014 to Vigil about the conduct of an Hispanic
co-worker and continued until his termination in September 2016. During that time,
English filed multiple complaints of discrimination and retaliation with SBA
officials, his congressman, and the Equal Employment Opportunity Commission
(EEOC) regarding Vigil, Gibbs, and others.
The initial incident following English’s complaint about the Hispanic
co-worker occurred when Vigil, whose husband is Hispanic, revised her
line-of-succession list, keeping the Hispanic co-worker and an Asian woman in first
and second places, respectively, and adding a third person who was not an
African-American. English then asked Vigil when he would be added to the list,
because he and another African-American employee who also was not on the list
1
The district court set out the factual background of this case in detail, so the
following summary suffices for our purposes.
2
were the most senior employees in the office. Vigil replied that the list would remain
the same.
Vigil also began to lower English’s performance reviews, and both she and
Gibbs issued him letters of reprimand concerning various instances of misconduct.
But of particular note are two suspensions proposed by Vigil and English’s
termination.
In February 2015, Vigil proposed suspending English for five days based on
two incidents: English’s failure to follow Vigil’s instructions that he complete an
assigned task by a deadline, and his taking a sick day without following established
procedure. A senior SBA official who reviewed Vigil’s suspension proposal in July
2015 dismissed the proposal regarding the sick-time incident because of a possible
misunderstanding by English, but issued him a letter of reprimand concerning his
failure to follow Vigil’s instructions.
Vigil later proposed suspending English for 30 days after he had been absent
without leave (AWOL). English’s unauthorized absence occurred after Vigil
suspended his telework privileges effective November 2, 2015, for alleged
performance deficiencies. On November 3, English did not appear in the office for
his scheduled shift. Vigil contacted English and directed him to report to work.
English refused and then informed a human resources (HR) representative that he
was invoking the “self-removal” provision of a Master Agreement (MA) governing
the terms of his employment (apparently negotiated with the union representing SBA
employees) and that he was refusing to come in to work until the SBA investigated
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his concern that Vigil and her team were “volatile, hostile, and harassing.” 2 R. Vol.
III at 643. On November 5 an SBA official, Frank Lalumiere, advised English that
his self-removal did not meet the MA’s requirement that an employee have an
objectively reasonable belief that his assigned duties posed a health or safety risk.
Lalumiere directed English to come in to work within an hour. (The district court
assumed that English complied.) Based on this AWOL episode and other
unprofessional conduct, Vigil proposed suspending English for 30 days. Gibbs
accepted Vigil’s proposal in May 2016 and imposed a 30-day suspension.
Ultimately, Vigil proposed terminating English’s employment. In April 2016,
Vigil asked English via instant messaging to come to her office and discuss two bond
matters he was working on. English balked and said he wanted “a witness.” R.
Vol. I at 275. Vigil told him it was “not disciplinary” and asked that he “[p]lease just
come in and tell [her] about the[] 2 missed bids.” Id. When English asked what she
wanted to know, Vigil responded, “Please come into my office to discuss. No need
for back and forth argument.” Id. English replied, “I detect some hostility. Do I
need to perform a self removal regarding this. I’m very uncomfortable meeting with
you.” Id. Vigil then went to English’s desk with a male co-worker to ask about the
bids. According to Vigil, the co-worker, and another employee, English stood up
angrily, crossed his arms, asked what Vigil’s “man” (referring to the co-worker) was
2
When properly invoked, the self-removal provision precludes the SBA from
considering the employee “insubordinate” or placing him “on sick or annual leave or
leave without pay, or AWOL status.” R. Vol. I at 132.
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going to do for her, demanded a witness from HR, and threatened to self-remove.
When Vigil went to get an HR employee, English left the office.
English informed SBA officials that he had performed a self-removal because
he felt threatened by Vigil. Gibbs advised English that he had reviewed the incident
and concluded that English had no valid reason for leaving the office without
approval. Gibbs told English that if he did not return to the office by April 26, 2016,
he would be considered AWOL. English did not return to work until May 17, 2016.
In August, based on English’s absence from work and several other
performance-related issues, Vigil proposed terminating English’s employment.
Gibbs accepted the proposal and removed English from his position in September
2016. The Merit Systems Protection Board (MSPB) affirmed the removal, and the
EEOC concurred in the MSPB’s conclusion that English did not establish an
affirmative defense of unlawful discrimination.
English then filed suit in the United States District Court for the District of
Colorado, asserting Title VII claims of racial discrimination and retaliation.
Defendants moved for summary judgment on both claims. In granting the motion the
district court assumed that English had established a prima face case of
discrimination and a prima facie case of retaliation. But the court determined that he
failed to establish a genuine issue of material fact whether defendants’ legitimate,
nondiscriminatory reasons for their actions were pretextual, and it granted summary
judgment. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973) (setting out pretrial burden-shifting framework used for resolving cases with
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only indirect evidence of racial discrimination); Singh v. Cordle, 936 F.3d 1022,
1042 (10th Cir. 2019) (explaining that McDonnell Douglas framework also applies to
Title VII retaliation cases). English filed a Motion to Alter or Amend Judgment.
The district court construed the motion as arising under Federal Rule of Civil
Procedure 59(e) and denied it, rejecting English’s arguments that he had established
pretext on the basis of (1) Gibbs’s allegedly false denial that he had seen a letter by
English explaining why he had invoked self-removal in April 2016, and (2) violations by
his superiors of the MA and the SBA’s Standard Operating Procedures. English
appeals.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to grant summary judgment,
applying the same standard governing the district court. Rivero v. Bd. of Regents of
Univ. of N.M., 950 F.3d 754, 758 (10th Cir. 2020). Summary judgment is proper if
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the denial of a
Rule 59(e) motion for abuse of discretion. Nelson v. City of Albuquerque, 921 F.3d
925, 929 (10th Cir. 2019). We construe English’s pro se filings liberally but without
acting as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
III. DISCUSSION
On appeal English reiterates his allegations of discriminatory and retaliatory
conduct and reasserts that the evidence was sufficient to support his claims. But his
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contentions are largely conclusory, and after reviewing the district court’s orders, along
with the parties’ appellate materials and the relevant legal authority, we perceive no error.
The court properly reviewed the evidence allegedly showing pretext and explained that
English had not presented any evidence that the reasons given by the defendants for any
adverse employment actions were a pretext for unlawful racial discrimination or
retaliation. (The court also noted the absence of evidence of a racially-hostile working
environment.) We therefore affirm for substantially the same reasons set forth in the
court’s summary-judgment order filed August 8, 2019. We also see no abuse of
discretion in the district court’s December 18, 2019 order denying English’s Rule 59(e)
motion and therefore affirm that order.
In so doing, we reject English’s argument that the district court violated
summary-judgment procedures by making credibility determinations and weighing
the evidence, because he provides no specifics other than to claim that the court
“gave considerable weight to Gibbs’ opinion.” Aplt. Opening Br. at 30. We
understand this as a reference to Gibbs’s opinion that English’s second self-removal
was not protected under the MA, an opinion with which English vehemently
disagrees. But the district court did not weigh Gibbs’s opinion on that matter; the
court instead explained (correctly) that the relevant inquiry was whether Gibbs
subjectively believed that English’s explanation was not objectively reasonable, as
the MA requires. “Evidence that the employer should not have made the termination
decision—for example, that the employer was mistaken or used poor business
judgment—is not sufficient to show that the employer’s explanation is unworthy of
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credibility.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169-70
(10th Cir. 2007). “The relevant inquiry is not whether the employer’s proffered
reasons were wise, fair or correct, but whether it honestly believed those reasons and
acted in good faith upon those beliefs.” Id. at 1170 (internal quotation marks
omitted). Thus, whether Gibbs’s opinion was wrong is beside the point. So too are
English’s contentions that Gibbs considered the wrong section of the MA, that Gibbs
was not the proper SBA official to review the self-removal, and that Gibbs and the
SBA violated the agency’s Standard Operating Procedure for supervisors handling
allegations of harassing conduct.
Likewise, the district court properly rejected the argument in English’s Rule
59(e) motion that pretext was shown by Gibbs’s denial that he had seen English’s
April 2016 letter explaining why he had invoked self-removal. Not only is there no
evidence that the denial was false, but even if there was a false denial, we are not
persuaded by English’s argument that a false denial would show pretext.
We also reject English’s contention that because defendants subjected him to
“vicarious retaliatory harassment” through Vigil and Gibbs that culminated in the
termination of his employment, defendants are “automatic[ally] liab[le] . . . and
. . . have no affirmative defense.” Aplt. Opening Br. at 7-8. In support of this
contention he cites Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and its
companion case, Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Both
concerned cases in which an employee had been subjected to sexual harassment by
supervisors. The question was whether the employer could escape vicarious liability
8
(for the supervisors’ misconduct) in certain circumstances. The Supreme Court
recognized an affirmative defense for employers where “the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior” and
the “employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer.” Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. But that defense is not “available . . . when the
supervisor’s harassment culminates in a tangible employment action, such as
discharge.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808. The important
point for our purposes is that the presence of a tangible employment action did not
eliminate the need to prove discrimination or retaliation. The Ellerth/Faragher
defense is irrelevant where, as here, a plaintiff fails to establish racial or retaliatory
harassment in the first place.
English further asserts that the district court did not address the 30-day
suspension. He is mistaken. See R. Vol. IV at 16 (applying the analysis of English’s
termination to, among other alleged adverse actions, the “30-day suspension”). 3
3
To the extent we have not addressed any other arguments set forth in
English’s appellate briefs, it is because either the district court provided an adequate
and correct analysis, English did not adequately present them in his opening brief,
see Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (explaining that “we
routinely . . . decline[] to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief”), or English presented them for the first
time in his reply brief, see Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676
n.9 (10th Cir. 2016) (“We generally do not consider arguments raised for the first
time in a reply brief.”)
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IV. CONCLUSION
We affirm the district court’s judgment and the court’s order denying
English’s Rule 59(e) motion. We grant English’s motion to proceed on appeal
without prepayment of fees or costs, but we remind him that he is obligated to pay
the full amount of the filing and docketing fees to the United States District Court for
the District of Colorado. See 28 U.S.C. § 1915(a)(1) (excusing only prepayment of
fees).
Entered for the Court
Harris L Hartz
Circuit Judge
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