F I L E D

United States Court of Appeals

Tenth Circuit

SEP 14 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EUGENE TRUJILLO, 

Plaintiff - Appellant,

v. No. 97-1129

UNIVERSITY OF COLORADO

HEALTH SCIENCES CENTER, 

Defendant - Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 94-D-1594)

William S. Finger of Frank & Finger, P.C., Evergreen, Colorado, for PlaintiffAppellant.

Patrick T. O’Rourke of Montgomery, Little & McGrew, P.C., Englewood,

Colorado (Kevin J. Kuhn of Montgomery, Little & McGrew, P.C.; Joanne M.

McDevitt and Stephen Zweck Bronner, Special Assistant Attorneys General,

University of Colorado, Denver, Colorado, with him on the brief), for DefendantAppellee.

_________________________

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

_________________________

McKAY, Circuit Judge.

_________________________
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Plaintiff Mr. Eugene Trujillo brought a discrimination claim pursuant to

Title VII, 42 U.S.C. §§ 2000e-2000e-5, against Defendant University of Colorado

Health Sciences Center [UCHSC] under theories of hostile work environment,

disparate treatment, and retaliation. Plaintiff appeals the district court’s grant of

summary judgment on all claims. We review the court’s decision de novo,

drawing all reasonable inferences in favor of Plaintiff, the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

Bolden v. PRC, Inc., 43 F.3d 545, 548 (10th Cir. 1994), cert. denied, 516 U.S.

826 (1995). The district court’s entry of summary judgment was appropriate if

“there [was] no genuine issue as to any material fact and . . . [Defendant was]

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

Plaintiff first claims that discrimination based on race created a hostile or

abusive work environment that resulted in a violation of Title VII. The district

court found the evidence insufficient to support the existence of a racially hostile

work environment and, therefore, granted Defendant summary judgment on that

claim. 

Plaintiff, who is Hispanic, alleges that his hostile work environment began

with Defendant’s hiring of Dr. Mackie Faye Hill as Director of the Center for

MultiCultural Enrichment [CFME], a unit of UCHSC within which Plaintiff was

employed. Plaintiff alleges that he was the victim of a hostile work environment
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because Dr. Hill, who is black, “document[ed] improprieties in [his] job

performance,” Plaintiff-Appellant’s Opening Br. at 32, criticized and checked on

his work, and sent him memos requesting Leave Request and Approval forms for

dates when he was absent from the office. He complains that he “was instructed

by supervisors to cancel a request for leasing space in a building” to operate a

program he supervised, R., Vol. II at 367; that UCHSC “refused to refurbish” the

building that he found to operate his program, id.; that his request to attend a

leadership program for Hispanics was not approved; and that he was not included

as one of the UCHSC representatives to the Latin American Educational Fund

Anniversary Dinner. He complains that when the combination to the lock on the

office which contained the xerox machine was changed, Dr. Hill’s administrative

assistant forgot to give Plaintiff the combination. Plaintiff wrote Dr. Hill a memo

and the problem was resolved the next day. See id., Vol. III at 1098. Plaintiff

complains that in May 1991 he was required to bring a final budget for one of his

programs to a meeting, and he further complains that a year later he was excluded

from part of the budgeting process for one of his programs. Plaintiff also

complains that Dr. Hill placed a corrective action in his personnel file that warned

him that he needed to improve his attendance, instructed him that he should not

offer employment positions without involving her in the process, and told him not

to produce and distribute the Pre-Collegiate Program Newsletter without first
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presenting it to her for review and approval. 

The record reflects that due to UCHSC’s budgetary difficulties, each entity

in UCHSC was instructed to prepare four adjusted budget plans. Each respective

plan was to reduce its unit’s operating budget by 0%, 3%, 7%, and 10%. Dr. Hill

submitted her budget plans, noting that the reductions were an “impossible task”

and would require CFME to “lay-off [sic] a staff member.” Id. at 901-02. She

expressed her concern about losing a staff position and requested an exemption

from the budget cuts. 

The Office of Academic Affairs recommended the elimination of Plaintiff’s

position. Dr. Hill was instructed to implement the plan proposed by the Office of

Academic Affairs, and on May 15, 1991, she informed Plaintiff that his position

was being eliminated. See id., Vol. I at 95; Vol. III at 909, 911. At the same

time that UCHSC was implementing the system-wide budget reductions, Dr. Hill

proposed the formulation of a new CFME position to be funded through a federal

grant. This position was never created, however, because the Director of

Personnel Services expressed concerns about creating a new position while

simultaneously discharging Plaintiff. Plaintiff was not discharged, and his

position was funded for the next year through a one-time $30,000 grant from the

President’s Office that was approved in October 1991. When the one-time grant

ended a year later, Plaintiff was discharged due to lack of funds. 
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To survive summary judgment, Plaintiff must show that “under the totality

of the circumstances (1) the harassment was pervasive or severe enough to alter

the terms, conditions, or privilege of employment, and (2) the harassment was

racial or stemmed from racial animus.” Bolden v. PRC Inc., 43 F.3d 545, 551

(10th Cir. 1994) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986)). In

evaluating the first prong of a hostile work environment claim, we look at all the

circumstances including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). As we

previously stated in Bolden, a few isolated incidents of racial enmity are

insufficient to survive summary judgment. See Bolden, 43 F.3d at 551.

Plaintiff falls short of making a showing of pervasive or severe harassment. 

See Bolden, 43 F.3d at 551. The record on appeal provides evidence of little

more than a collection of unrelated incidents where Plaintiff and Dr. Hill were at

odds. Plaintiff was not subjected to anything that was physically threatening or

humiliating, nor was he subjected to any offensive utterances. See Harris, 510

U.S. at 23. Plaintiff’s list of grievances includes none of the racial comments or

ridicule that are hallmarks of hostile work environment claims. See Witt v.

Roadway Express, 136 F.3d 1424, 1432-33 (10th Cir. 1998); Smith v. Norwest
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Fin. Acceptance, Inc., 129 F.3d 1408, 1413-14 (10th Cir. 1997); see also Vore v.

Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir. 1994) (“In the typical cases,

the question is whether the quantity, frequency, and severity of the racial, ethnic,

or sexist slurs create a work environment so hostile as to discriminate against the

minority employee.”). The hostile work environment that Plaintiff portrays is

simply a work environment that exhibits the monitoring and job stress typical of

life in the real world. Normal job stress does not constitute a hostile or abusive

work environment. As the Seventh Circuit explained, federal law “does not

guarantee a utopian workplace, or even a pleasant one. . . . [P]ersonality conflicts

between employees are not the business of the federal courts.” Vore, 32 F.3d at

1162. We cannot vilify every supervisor that implements a policy with which an

employee disagrees or that monitors her employees’ conduct. Plaintiff has not

cited any cases that have found similar employer conduct to constitute a racially

hostile work environment, and we decline to extend the contours of a “hostile

work environment” to include Plaintiff’s alleged job situation.

Had Plaintiff presented more persuasive evidence that his alleged

harassment stemmed from racial animus, we may have disposed of his appeal

differently. As we have mentioned, however, there is no evidence of racial

harassment; there are no racial slurs or racially harassing comments in his work

environment. Plaintiff’s only hope for escaping summary judgment was to
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present sufficient evidence that the conduct he complains of stemmed from racial

animus. Here is the evidence he presented: (1) He is Hispanic and Dr. Hill, his

supervisor, is a black female; (2) there were two other blacks in his employment

unit and, therefore, blacks constituted the majority in the unit; (3) the prior CFME

director who Dr. Hill replaced was Hispanic and did not get along with one of the

black CFME employees; (4) this black employee was friends with or related to a

few black management-level employees in other UCHSC offices; and (5) when

the former Hispanic CFME director discharged another black employee, he was

accused of the same discriminatory conduct that Plaintiff is now accusing Dr. Hill

of committing. Plaintiff also states that one time he saw Dr. Hill yell at a

Hispanic nursing student; that Plaintiff offered to counsel and represent the

student regarding the incident; and that, although Dr. Hill allegedly would not

allow Plaintiff to represent the Hispanic student, Plaintiff did discuss the incident

with the Chancellor’s Affirmative Action Advisory Committee. Plaintiff’s

evidence is insufficient to create a jury question that his stressful working

conditions were inflicted upon him because of racial animus. We note that,

although Plaintiff alleges that his hostile work environment began when Dr. Hill

was hired as CFME director, much of his evidence of Dr. Hill’s alleged racial

animus occurred before Dr. Hill was associated with the CFME office. We,

therefore, affirm summary judgment on Plaintiff’s hostile work environment
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claim.

Plaintiff also appeals the district court’s entry of summary judgment on his

disparate treatment claim. The district court found that Plaintiff met his initial

burden of establishing a prima facie case of racial discrimination by showing (1)

that he is a member of a racial minority, (2) that he suffered an adverse

employment action, and (3) that similarly situated employees were treated

differently. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 

Once an employee carries his burden of demonstrating a prima facie case, the

burden of production shifts to the employer to demonstrate “some legitimate,

nondiscriminatory reason” for the adverse employment action. Id.; see Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). If the

employer offers a nondiscriminatory reason, the burden shifts back to the

employee to show that there is a genuine dispute of material fact as to whether the

employer’s reason for the challenged action is pretextual and unworthy of belief. 

See Burdine, 450 U.S. at 256; Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th

Cir. 1994). A reason is not a “‘pretext for discrimination’ unless it is shown both

that the reason was false, and that discrimination was the real reason.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). The employer is entitled to

summary judgment if the employee “could not offer evidence tending to show the

defendant’s innocent explanation for his employment decision was false.” Randle
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v. City of Aurora, 69 F.3d 441, 451 n.14 (10th Cir. 1995).

In this case, the district court concluded that Plaintiff “offered no credible

evidence that create[d] a genuine issue of material fact that ‘defendant’s proffered

reason[s] for the employment decision[s] were pretextual–i.e. unworthy of

belief.’” R., Vol. III at 1167 (quoting Randle, 69 F.3d at 451). As we discussed

above, Defendant explained that Plaintiff was discharged and never rehired due to

budget cuts and mandatory staff reductions. After a thorough review of the

record, we agree with the district court that Plaintiff has failed to present a jury

question as to whether Defendant’s reason is pretextual and unworthy of belief. 

The district court also granted summary judgment on Plaintiff’s retaliation

claim. To survive summary judgment, Plaintiff must present evidence

establishing a genuine issue of fact that (1) he engaged in protected opposition to

statutorily prohibited discrimination; (2) he was subjected to an adverse

employment action subsequent to or contemporaneous with his protected

opposition; and (3) a causal connection exists between the employer’s adverse

employment action and the employee’s protected activity. See Murray v. City of

Sapulpa, 45 F.3d 1417, 1420 (10th Cir. 1995); Cole v. Ruidoso Mun. Sch., 43

F.3d 1373, 1381 (10th Cir. 1994). Former employees qualify as “employees” for

purposes of bringing unlawful retaliation claims against a former employer. See

Robinson v. Shell Oil Co., 519 U.S. 337, , 117 S. Ct. 843, 849 (1997).
1

 In the district court, Plaintiff also claimed that he was retaliated against

while employed at UCHSC. However, because Plaintiff failed to raise that

retaliation claim in his opening brief, we hold that he has waived that claim on

appeal. See State Farm Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th

Cir. 1994). We only address Plaintiff’s claims of retaliation while he was

employed by LARASA.

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Plaintiff alleges that Defendant retaliated against him by causing his

subsequent employer, the Latin American Research and Service Agency

[LARASA], to terminate his employment.1 We recite below the evidence in the

record that is relevant to Plaintiff’s retaliation claim.

In her deposition testimony, Plaintiff’s supervisor at LARASA, Ms. Maria

Guajardo, discussed a June 3, 1993 evaluation of Plaintiff’s work. Ms. Guajardo

stated that Plaintiff’s job performance evaluation reflected that Plaintiff exhibited

the following problems: (1) low productivity, specifically including a failure to

write the required grant proposals; (2) failure to meet self-imposed deadlines; (3)

poor follow-up on recommendations made; (4) poor preparation for meetings; and

(5) poor prioritization and planning. See R., Vol. III at 957-58. She stated that

she had spoken to Plaintiff about his low productivity “at least monthly” prior to

writing the June performance evaluation. Id. at 957. 

The record reflects that Plaintiff was placed on probation at LARASA for

the month of June, given deadline dates and activities that needed to be completed

within the following thirty days, and informed that future employment at
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LARASA was contingent on the completion of the activities and the quality of the

work. Ms. Guajardo stated that Plaintiff failed to complete the activities by the

deadline dates. Although Plaintiff failed to provide us with the date of his

dismissal and our review of the record has not disclosed the date, Ms. Guajardo

states in her deposition that she met with Plaintiff to review the list of tasks and,

“at that point, informed him that his performance was not up to par; and . . . that

[she] would not be continuing his employment at LARASA.” Id. at 958. The

record indicates that Plaintiff told Ms. Guajardo “that he was going to resign

voluntarily, and that, along with his resignation, he had an expectation of

severance pay.” Id.

In support of his retaliation claim, Plaintiff submitted a memo written by a

fellow employee and dated Monday, July 12, 1993. In her memo, Plaintiff’s coworker writes, “Currently, I see no legitimate reason for [Plaintiff’s] dismissal. If

it was due to performance problems, it is beyond me . . . .” R., Vol. II at 499. In

her deposition, Ms. Guajardo stated that there was discussion at a staff retreat on

the Friday before the memo, July 9, about “[t]he safety of the office, the process

and procedures for staff, in light of the staff changes.” Id. at 852 (emphasis

added). Plaintiff did not attend the July 9 staff retreat, and when Ms. Guajardo

was asked how Plaintiff responded to the information in the July 12 memo, she

said, “He was gone by then. He was not in the office.” Id. at 853. After a
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thorough review of the record, the only reasonable view of the evidence is that

Plaintiff was informed that he would be dismissed before Monday, July 12, and

most likely before Friday, July 9.

On July 8, the Thursday previous to the July 12 memo, Ms. Guajardo

removed Plaintiff’s office keys. The next day, at the Friday, July 9 staff retreat,

Ms. Guajardo stated that she took his keys from him “based on a rumor that he

had ‘crashed the computer system at his last place of employment.’” Id. at 852. 

Plaintiff asserts that this rumor is false and that it originated from Dr. Hill. There

is no direct evidence that Dr. Hill told anyone at LARASA that Plaintiff destroyed

a computer system at UCHSC, but the record does reveal some circumstantial

evidence. A UCHSC employee stated in the record that Dr. Hill told him that

“prior to when [Plaintiff] left [UCHSC], he had erased the IBM computers.” Id.

at 843-44. Ms. Guajardo said that she heard the rumor about Plaintiff from a

fellow LARASA employee “around the time of [Plaintiff] being terminated.” Id.

at 853. Dr. Hill stated in the record that she spoke with this same LARASA

employee several times in 1993 and that she had told the employee that she “had

the same difficulty [with Plaintiff that the employee] was talking about.” Id. at

849. 

To escape summary judgment on his claim that Defendant retaliated against

him by causing him to be terminated by LARASA, Plaintiff must present evidence
2

 In his Amended Complaint, Plaintiff alleged that Defendant transmitted

the rumor to LARASA “on or about July 20, 1993.” R., Vol. I at 6. If we

accepted this version of the facts, Defendant’s suspect communication to

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of a causal connection between his discharge and the rumor. See Murray, 45 F.3d

at 1420. Ms. Guajardo testified that her negative evaluation of Plaintiff’s job

performance was in no way influenced by Dr. Hill or anyone else employed by

Defendant. Plaintiff’s unsupported assertions that Ms. Guajardo’s discharge of

Plaintiff was influenced by the rumor do not create a jury question. The court

appropriately granted summary judgment on the retaliatory discharge claim.

Plaintiff also asserts that Defendant retaliated against him by causing his

reputation to be damaged at the July 9 LARASA staff retreat and by causing Ms.

Guajardo to remove his office keys on July 8. Plaintiff did create an issue of fact

that Ms. Guajardo’s conduct on July 8 and July 9 was caused by a rumor

originating from Dr. Hill. However, in order to establish a prima facie case of

retaliation, Plaintiff must also show that damaging his reputation at the July 9

staff retreat and removing his office keys on July 8 constitute adverse

employment actions. Unfortunately, Plaintiff failed to provide the exact date of

his dismissal. After thoroughly reviewing the record, we have not discovered the

exact date, but the evidence undoubtedly indicates that the removal of Plaintiff’s

keys and Ms. Guajardo’s comments at the staff retreat occurred either in

conjunction with or soon after Plaintiff’s dismissal.2

 Thus, Ms. Guajardo’s
LARASA would have occurred almost two weeks after the retaliatory actions the

rumor is alleged to have induced. Such a version of the facts would obviously

require affirmance of the district court’s summary judgment. 

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conduct had no adverse effect on his employment with LARASA because Plaintiff

no longer had a job. See Cole, 43 F.3d at 1382 (“The harm to Cole resulted from

the nonrenewal and demotion, not from the School District’s subsequent

explanation of its action. Cole has produced no facts to show that the District’s

change in position has in any way adversely affected her employment.”). Since

Plaintiff had already been discharged, he has not and cannot show that the

removal of his keys and the comment at the retreat affected his life on the job or

his opportunities at LARASA. If he had alleged and presented evidence that his

supervisor’s conduct deprived him of future employment prospects, our decision

might have been different. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986

(10th Cir. 1996). The only issue Plaintiff has raised is whether his supervisor

acted on the rumor to take precautions in connection with her otherwise

independent decision to discharge him. Such conduct does not constitute an

adverse employment action giving rise to a retaliation claim. The court did not

err in granting summary judgment.

Finally, Plaintiff claims that he was denied fundamental fairness in the

judicial proceedings due to the failure of the magistrate judge to provide copies of

certain orders to his counsel, Mr. William Finger. Plaintiff’s claim is without
3

 After thoroughly reviewing Plaintiff’s contentions concerning the nature

of the evidence considered by the district court in ruling on the Motion for

Summary Judgment and Plaintiff’s assertion that the district court erred by not

requiring Defendant to adhere to the district court’s rules regarding the format of

reply briefs, we conclude Plaintiff’s claims are without merit. The district court

did not abuse its discretion on these issues.

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merit. Mr. Finger’s Entry of Appearance lists him as co-counsel on behalf of

Plaintiff. Each minute order that did not include Mr. Finger on the certificate of

mailing included Mr. Finger’s co-counsel, Mr. Juan Vigil. Mr. Vigil admits that

he received copies of the minute orders. Additionally, the magistrate judge had

established a pattern of including only Mr. Vigil on the certificate of mailing for

his minute orders. Beginning with a minute order filed October 13, 1995, and

continuing with orders filed November 6, 1995, November 21, 1995, and

December 7, 1995, Mr. Finger was omitted from the certificate of mailing. 

Because Mr. Finger had plenty of time to recognize the magistrate judge’s

omission and remedy it by bringing it to the magistrate judge’s attention, and

because Mr. Finger’s co-counsel and Plaintiff’s agent, Mr. Vigil, received copies

of the minute orders, we hold that Plaintiff was not denied fundamental fairness. 

The district court’s summary judgment is AFFIRMED.3