## 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., Evergree n, Colorado, for PlaintiffAppellant. Patrick T. O’Rourke of Montgomery, Little & McGrew, P.C., Englewood, Colorado (Kevin J. Kuhn of Montgomery, Little & McG rew, 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.

_________________________-2-

Plaintiff Mr. Eugene Trujillo brought a discriminat ion claim pursuant to Title VII, 42 U.S.C. §§ 2000e-2000e-5, against Defe ndant University of Colorado Health Sciences Center [UCHSC] under theories of ho stile work environment, disparate treatment, and retaliation. Plaintiff ap peals 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 Plain tiff, 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 fa ct 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 violati on of Title VII. The district court found the evidence insufficient to support th e existence of a racially hostile work environment and, therefore, granted Defendant summary judgment on that claim. Plaintiff, who is Hispanic, alleges that his hostil e 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 wi thin which Plaintiff was employed. Plaintiff alleges that he was the victim of a hostile work environment-3-

because Dr. Hill, who is black, “document[ed] impro prieties in [his] job performance,” Plaintiff-Appellant’s Opening Br. at 32, criticized and checked on his work, and sent him memos requesting Leave Reque st and Approval forms for dates when he was absent from the office. He compl ains that he “was instructed by supervisors to cancel a request for leasing spac e in a building” to operate a program he supervised, R., Vol. II at 367; that UCH SC “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 Am erican Educational Fund Anniversary Dinner. He complains that when the com bination to the lock on the office which contained the xerox machine was change d, 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 p rograms. Plaintiff also complains that Dr. Hill placed a corrective action in his personnel file that warned him that he needed to improve his attendance, instr ucted him that he should not offer employment positions without involving her inthe process, and told him not to produce and distribute the Pre-Collegiate Program Newsletter without first-4-

presenting it to her for review and approval. The record reflects that due to UCHSC’s budgetary d ifficulties, each entity in UCHSC was instructed to prepare four adjusted bu dget 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 reducti ons were an “impossible task” and would require CFME to “lay-off [sic] a staff me mber.” Id. at 901-02. She expressed her concern about losing a staff positionand requested an exemption from the budget cuts. The Office of Academic Affairs recommended the elim ination 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 informedPlaintiff 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 bu dget reductions, Dr. Hill proposed the formulation of a new CFME position to be funded through a federal grant. This position was never created, however, b ecause the Director of Personnel Services expressed concerns about creatin g a new position while simultaneously discharging Plaintiff. Plaintiff wa s 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 199 1. When the one-time grant ended a year later, Plaintiff was discharged due to lack of funds.-5-

To survive summary judgment, Plaintiff must show th at “under the totality of the circumstances (1) the harassment was pervasi ve 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. P RC Inc. , 43 F.3d 545, 551 (10th Cir. 1994) (citing Meritor Sav. Bank v. Vinso n , 477 U.S. 57, 67 (1986)). In evaluating the first prong of a hostile work enviro nment claim, we look at all the circumstances including “the frequency of the discr iminatory conduct; its severity; whether it is physically threatening or h umiliating, or a mere offensive utterance; and whether it unreasonably interferes w ith 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 pervas ive or severe harassment.
See Bolden , 43 F.3d at 551. The record on appeal provides ev idence of little more than a collection of unrelated incidents where Plaintiff and Dr. Hill were at odds. Plaintiff was not subjected to anything thatwas physically threatening or humiliating, nor was he subjected to any offensive utterances. See Harris , 510 U.S. at 23. Plaintiff’s list of grievances include s none of the racial comments or ridicule that are hallmarks of hostile work environ ment claims. See Witt v. Roadway Express , 136 F.3d 1424, 1432-33 (10th Cir. 1998); Smith v. Norwest-6-

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 typic al cases, the question is whether the quantity, frequency, an d severity of the racial, ethnic, or sexist slurs create a work environment so hostil e as to discriminate against the minority employee.”). The hostile work environmentthat Plaintiff portrays is simply a work environment that exhibits the monitor ing and job stress typical of life in the real world. Normal job stress does notconstitute a hostile or abusive work environment. As the Seventh Circuit explained , federal law “does not guarantee a utopian workplace, or even a pleasant o ne. . . . [P]ersonality conflicts between employees are not the business of the feder al courts.” Vore , 32 F.3d at 1162. We cannot vilify every supervisor that imple ments a policy with which an employee disagrees or that monitors her employees’ conduct. Plaintiff has not cited any cases that have found similar employer co nduct to constitute a racially hostile work environment, and we decline to extend the contours of a “hostile work environment” to include Plaintiff’s alleged jo b situation. Had Plaintiff presented more persuasive evidence th at 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 h arassing comments in his work environment. Plaintiff’s only hope for escaping su mmary judgment was to-7-

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 o ther 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 didnot get along with one of the black CFME employees; (4) this black employee was f riends with or related to a few black management-level employees in other UCHSC offices; and (5) when the former Hispanic CFME director discharged anothe r black employee, he was accused of the same discriminatory conduct that Pla intiff 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 C ommittee. Plaintiff’s evidence is insufficient to create a jury question that his stressful working conditions were inflicted upon him because of racia l animus. We note that, although Plaintiff alleges that his hostile work en vironment 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 withthe CFME office. We, therefore, affirm summary judgment on Plaintiff’s h ostile work environment-8-

claim. Plaintiff also appeals the district court’s entry o f summary judgment on his disparate treatment claim. The district court foun d 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 demonstratin g a prima facie case, the burden of production shifts to the employer to demo nstrate “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 bur den 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 pret extual 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 discri mination’ 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 entitl ed to summary judgment if the employee “could not offer e vidence tending to show the defendant’s innocent explanation for his employmentdecision was false.” Randle-9-

v. City of Aurora , 69 F.3d 441, 451 n.14 (10th Cir. 1995). In this case, the district court concluded that Pla intiff “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 prete xtual–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 disch arged 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 Plain tiff 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 onPlaintiff’s retaliation claim. To survive summary judgment, Plaintiff mustpresent evidence establishing a genuine issue of fact that (1) he en gaged in protected opposition to statutorily prohibited discrimination; (2) he was s ubjected to an adverse employment action subsequent to or contemporaneous with his protected opposition; and (3) a causal connection exists betw een the employer’s adverse employment action and the employee’s protected acti vity. See Murray v. City of Sapulpa , 45 F.3d 1417, 1420 (10th Cir. 1995); Cole v. Ruid oso Mun. Sch. , 43 F.3d 1373, 1381 (10th Cir. 1994). Former employees qualify as “employees” for purposes of bringing unlawful retaliation claims ag ainst 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 Plaintif f 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. -10- Plaintiff alleges that Defendant retaliated againsthim by causing his subsequent employer, the Latin American Research an d 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 supervisorat LARASA, Ms. Maria Guajardo, discussed a June 3, 1993 evaluation of Pl aintiff’s work. Ms. Guajardo stated that Plaintiff’s job performance evaluation reflected that Plaintiff exhibited the following problems: (1) low productivity, spec ifically 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 pr eparation 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 productiv ity “at least monthly” prior to writing the June performance evaluation. Id. at 957. The record reflects that Plaintiff was placed on pr obation at LARASA for the month of June, given deadline dates and activit ies that needed to be completed within the following thirty days, and informed thatfuture employment at-11-

LARASA was contingent on the completion of the acti vities and the quality of the work. Ms. Guajardo stated that Plaintiff failed to complete the activities by the deadline dates. Although Plaintiff failed to provi de us with the date of his dismissal and our review of the record has not disc losed the date, Ms. Guajardo states in her deposition that she met with Plaintif f to review the list of tasks and, “at that point, informed him that his performance w as 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 subm itted a memo written by a fellow employee and dated Monday, July 12, 1993. I n her memo, Plaintiff’s coworker writes, “Currently, I see no legitimate reas on 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 sa fety 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 informatio n in the July 12 memo, she said, “He was gone by then. He was not in the offi ce.” Id. at 853. After a-12-

thorough review of the record, the only reasonable view of the evidence is that Plaintiff was informed that he would be dismissed b efore Monday, July 12, and most likely before Friday, July 9. On July 8, the Thursday previous to the July 12 mem o, 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 thatit 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 rev eal some circumstantial evidence. A UCHSC employee stated in the record th at Dr. Hill told him that “prior to when [Plaintiff] left [UCHSC], he had era sed the IBM computers.” Id. at 843-44. Ms. Guajardo said that she heard the ru mor about Plaintiff from a fellow LARASA employee “around the time of [Plainti ff] being terminated.” Id. at 853. Dr. Hill stated in the record that she spo ke with this same LARASA employee several times in 1993 and that she had tol d the employee that she “had the same difficulty [with Plaintiff that the employ ee] was talking about.” Id. at 849. To escape summary judgment on his claim that Defend ant retaliated against him by causing him to be terminated by LARASA, Plai ntiff must present evidence2 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 sus pect communication to -13- of a causal connection between his discharge and th e 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 oranyone else employed by Defendant. Plaintiff’s unsupported assertions thatMs. Guajardo’s discharge of Plaintiff was influenced by the rumor do not create a jury question. The court appropriately granted summary judgment on the retal iatory discharge claim. Plaintiff also asserts that Defendant retaliated ag ainst 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. Plai ntiff did create an issue of fact that Ms. Guajardo’s conduct on July 8 and July 9 wa s caused by a rumor originating from Dr. Hill. However, in order to es tablish 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 faile d to provide the exact date of his dismissal. After thoroughly reviewing the reco rd, 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 retre at occurred either in conjunction with or soon after Plaintiff’s dismissa l. 2 Thus, Ms. Guajardo’sLARASA would have occurred almost two weeks after the retaliatory actions the

rumor is alleged to have induced. Such a version o f the facts would obviously require affirmance of the district court’s summary judgment. -14- conduct had no adverse effect on his employment wit h 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 Di strict’s subsequent explanation of its action. Cole has produced no fa cts to show that the District’s change in position has in any way adversely affecte d her employment.”). Since Plaintiff had already been discharged, he has not a nd 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 andpresented evidence that his supervisor’s conduct deprived him of future employm ent 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 rai sed is whether his supervisor acted on the rumor to take precautions in connectio n with her otherwise independent decision to discharge him. Such conduc t does not constitute an adverse employment action giving rise to a retaliat ion claim. The court did not err in granting summary judgment. Finally, Plaintiff claims that he was denied fundam ental fairness in the judicial proceedings due to the failure of the magi strate judge to provide copies of certain orders to his counsel, Mr. William Finger. Plaintiff’s claim is without3 After thoroughly reviewing Plaintiff’s contention s 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 wi thout merit. The district court did not abuse its discretion on these issues. -15- 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. Additiona lly, the magistrate judge had established a pattern of including only Mr. Vigil o n the certificate of mailing for his minute orders. Beginning with a minute order f iled October 13, 1995, and continuing with orders filed November 6, 1995, Nove mber 21, 1995, and December 7, 1995, Mr. Finger was omitted from the c ertificate of mailing. Because Mr. Finger had plenty of time to recognize the magistrate judge’s omission and remedy it by bringing it to the magist rate judge’s attention, and because Mr. Finger’s co-counsel and Plaintiff’s age nt, Mr. Vigil, received copies of the minute orders, we hold that Plaintiff was no t denied fundamental fairness.

The district court’s summary judgment is AFFIRMED. 3