UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

ROLAND BENAVIDES, Plaintiff-Appellant,

v. CITY OF OKLAHOMA CITY, Defendant-Appellee. No. 12-6107 (D.C. No. 5:11-CV-00126-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

In this employment discrimination case, Roland Benavides appeals from a district court order that granted the C ity of Oklahoma City’s motion for summary judgment on Benavides’ claims under the Americans with Disa bilities Act (ADA), 42 U.S.C. §§ 12131-12134, and the Fa mily and Medical Leave Act (FMLA),

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant 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 ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 23, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - 29 U.S.C. §§ 2611-2619. We have juri sdiction under 28 U.S.C. § 1291, and we affirm.
B ACKGROUND Benavides began working for the City as a police officer in 1992. Ultimately, he became a detective, and was assigned to the burglary unit in 2006. Due to various medical conditions, including d ilated cardiomyopathy, Bena vides took sick leave and donated leave under the FMLA. On May 14, 2010, one of Benavides’ co-workers filed a confidential report indicating that Benavides was suspected of illegal gambling. Based on that report, the police chief ordered an investigation. One week later, Benavide s complained to his immedi ate supervisor, Lieutenant Frank O’Brien, that his co -workers had been harassi ng him regarding his health problems and use of sick leave. Lieutenant O’Brien met with Be navides’ co-workers in the burglary unit and instructed them to stop commenting on Benavides’ use of sick leave. On May 27, Benavides reduced his al legations to writing, stating that (1) co-workers had placed a can of cremat ed ashes on his desk because they had heard he was on his death bed; (2) co-wor kers had on several occasions placed a packaged tampon on his chair; (3) one co -worker created a vi deo cartoon negatively depicting his medical condition and sent it around the office ; (4) that same co-worker told Benavides that if he worked for the mil itary, he would have been fired; and- 3 - (5) a co-worker called him a “ dumbass” at least four times regarding his use of time off. Lieutenant O’Brien again spoke w ith Benavides’ co-wor kers, and forwarded Benavides’ allegations up the chain of command. The police chief ordered an investigation. Captain Kim Flowers bega n that investigation on June 17, interviewing Benavides about his allegations. She interv iewed him again severa l days later, and then proceeded to interview seventeen of his co-workers, as well as Lieutenant O’Brien. On July 26, Captain Flowers issued a detailed, 61-page report, determining that the cartoon video and “dumb ass” re marks violated various departmental policies. As for the other comments and incidents, she determined that they were either part of the jovial environment that existed in the burglary unit, and in which Benavides had at times participated , or were simply not confirmed. On September 21, 2010, Benavides was subpoenaed to testify before a grand jury. Pursuant to departmental policy for officers about to be charged with a crime, Benavides was immediately placed on paid administrative leave. On October 8, 2010, as a result of Captain Flowers’ investigation, the Department formally reprimanded the co -worker who had disseminated the cartoon video, and it issued “documented counseli ng[s]” to three co-workers regarding the “dumb ass” remarks and tampon incident s. Aplt. App., Vol. III at 526-28.- 4 - On October 19, 2010, Benavides file d a discrimination charge with the Oklahoma Human Rights Commission. In Febr uary 2011, Benavides sued the City, the Department, the police chief, Captai n Flowers, and various co-workers for violations of the ADA and the FMLA. The di strict court dismisse d the claims against the individual defendants and the Departme nt, and the case proceeded against only the City. In June 2011, while still on paid admi nistrative leave, Bena vides was indicted in state court on gambling charges. In January 2012, he resigned from the Department, stating that he was “voluntarily resign[ing] . . . as the result of [his] declining medical condition due in part to the stress related events of [his] disability case.” Id. , Vol. I at 75. The City moved for summary judgment . While briefing was in progress, Benavides pleaded guilty to one count of illegal gambling and one count of using a computer to illegally gamble , and he was given a “5 year unsupervised deferred sentence.” Id. at 202. The district court granted the City’s summary-judgment motion. It concluded that Benavides was not disabled under the ADA, but even if he was disabled, the working conditions at the Department were not hostile, a nd were promptly investigated by the Department. Further, it rejected his claims for retaliation, concluding that Benavides failed to show a materially adverse job action or that being placed on administrative leave was a pretext for retaliation.- 5 - D ISCUSSION I. Standards of Review We review the district court’s or der granting summary judgment de novo, applying the same standard as the district court. Ribeau v. Katt , 681 F.3d 1190, 1194 (10th Cir. 2012). Summary j udgment is appropriate “if th e movant shows that there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the evidence and draw reasonable inferences ther efrom in the light mo st favorable to the nonmoving party.” Ribeau , 681 F.3d at 1194. 1
II. ADA Claims The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures , the hiring, advancement, or discharge of employees, employee compensa tion, job training, and other terms, conditions, and privileges of empl oyment.” 42 U.S.C. § 12112(a). 2 On appeal,

1 Benavides argues that the district court construed the facts in a light favorable to the City. We disagree. In any event, our review of a summary-judgment decision is de novo.
2 We need not reach the i ssue of whether Benavides is disabled under the ADA, see 42 U.S.C. § 12102(1) (extending ADA protections to persons who have “a physical or mental impairme nt that substantially limits one or more major life activities,” a “record of such an impairment,” or if th ey are “regarded as having such an impairment”), because other aspect s of his ADA claims are dispositive. Additionally, a disability is not a prere quisite to an ADA-re taliation claim. Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1264 (10th Cir. 2001).- 6 - Benavides identifies four ADA-based theories : hostile work envi ronment; failure to accommodate; discriminati on; and retaliation. A. Hostile Work Environment “For a hostile environment claim to survive a summary judgment motion, a plaintiff must show that a rational jury could find that the wo rkplace was permeated with discriminatory intimidati on, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditi ons of the victim’s employm ent and create an abusive working environment.” MacKenzie v. City & Cnty. of Denver , 414 F.3d 1266, 1280 (10th Cir. 2005) (brackets and quotation omitted). Bu t the standard for imposing liability on an employer for workplace harass ment is heightened where, as here, the perpetrators of that harass ment were a plaintiff’s co -workers. Specifically, the employer, “as opposed to the individual direct ly responsible for th e misbehavior, is liable, on a negligence theory, if it knew or should have known a bout the conduct and failed to stop it.” Bertsch v. Overstock.com , 684 F.3d 1023, 1027 (10th Cir. 2012) (quotation omitted). Thus, “[a]n employer is absolved of liability for acts of harassment by its employees if it undertakes remedi al and preventative action reasonably calculated to end the harassment.” Duncan v. Manager, Dep’t of Safety, City & Cnty. of Denver , 397 F.3d 1300, 1310 (10th Cir. 2005) (quotation omitted). Benavides does not devote any legal argum ent to the City’s remedial response to his harassment allegations. “[A] part y waives those argumen ts that its opening- 7 - brief inadequately addresses.” Harsco Corp. v. Renner , 475 F.3d 1179, 1190 (10th Cir. 2007). Even if we were to cons true Benavides’ legal briefs as adequately addressing the issue, the record indicates that the City reasonabl y responded to his allegations. Specifically, after Benavides brought th e offending conduct and remarks to light, Lieutenant O’Brien twice instructed Bena vides’ co-workers to cease. Captain Flowers soon thereafter initiated an extens ive investigation, concluding that the cartoon video and “dumb ass” remarks violated department al policy. And the City imposed discipline for not only the infractions found by Captain Flowers, but also for the tampon incidents. Alt hough the City placed Benavide s on leave before formally disciplining his co-workers, Benavides id entifies nothing indicating that his coworkers continued their harassment afte r Lieutenant O’Brien’s second warning. 3 “A stoppage of harassment” suggests a reasonable employer response. Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1148 (10t h Cir. 2008) (quotation om itted). In any event, Benavides has not carried his burden of de monstrating that the City’s response was inadequate. See Hollins v. Delta Airlines , 238 F.3d 1255, 1258 ( 10th Cir. 2001) (“In order to prevail on a negligence-based hostile work environment claim, [the

3 To the extent Benavides asserts that after he complained he was shunned by his co-workers, he cannot establis h a hostile work environment. See Palesch v. Mo. Comm’n on Human Rights , 233 F.3d 560, 567 (8th Cir. 2000) (noting that ostracism, without more, is insufficient to cr eate a hostile work environment).- 8 - employee] bears the burden of establis hing that the employer’s conduct was unreasonable.” (quota tion omitted)). We conclude that there is no genuine i ssue of fact as to whether the City took prompt and appropriate remedial action in response to Benavide s’ allegations of harassment. Thus, we need not address whether Benavides was subjected to conduct that was sufficiently severe or pervasive as to constitute a hostile work environment. B. Failure to Accommodate Failing to reasonably accommodate an employee’s disability is a type of discrimination. See 42 U.S.C. § 12112(b)(5)(A). Be navides argues that he “made several requests to the City for job transfers” “to a ddress his serious medical condition,” but “[o]n each occa sion [he] was rejected and remained in the burglary detail.” Aplt. Opening Br. at 36. Bu t he did not make a failure-to-accommodate argument below, and we decline to address an argument not raised in the district

court. See ClearOne Commc’ns, Inc. v. Biamp Sys. , 653 F.3d 1163, 1182 (10th Cir. 2011) (“This court will genera lly not consider an argument that was not raised in the district court.”). Moreover, Benavides does not adequately brief the argument for our consideration. See Hennagir v. Utah Dep’t of Corr. , 587 F.3d 1255, 1264 (10th Cir. 2009) (“When alleging a failure to accomm odate, a plaintiff carries the burden of demonstrating the existence of a fa cially reasonable accommodation.”).- 9 - C. Discriminatory Admi nistrative-Leave Conditions Benavides argues that while on administ rative leave, he was “prohibited from engaging in several income producing activities that in the past . . . he was capable of performing.” Aplt. Opening Br. at 37-38. “To establish a pr ima facie case of discrimination under the ADA, Plaintiff must demonstrate (1) that he is ‘disabled’ within the meaning of the ADA, (2) that he is qualified-with or without reasonable accommodation; and (3) that he was discrimi nated against because of his disability.” Butler v. City of Prairie Vill. , 172 F.3d 736, 748 (10th Ci r. 1999) (footnotes and quotation omitted). Benavides’ ar gument fails under the last prong. “In order to demonstrate discrimination, a plaintiff generally must show that he has suffered an adverse employment action because of the disability.” EEOC v. C.R. England, Inc. , 644 F.3d 1028, 1038 (10th Cir. 2011) (quotation omitted; emphasis added). Although this cour t liberally defines the term “adverse employment action,” it generally refers only to “acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or [to] a decision causing a significant change in benefits.” Id. at 1040 (brackets and quotations omitted). At the very least, “a plaintiff must show that the alle ged adverse action caused more than de minimis harm to or a de minimis impact upon [his] job op portunities or status.” Id. (quotation omitted).- 10 - Benavides does not dispute that he was paid his full salary while on leave. Rather, he complains that he could not use his police bac kground in side jobs while on leave. But the only side job he iden tified during his deposit ion was intermittent security work that he had not done for at least seven years before being placed on leave. We conclude that no rational jury could find that the rest riction on Benavides’ administrative leave was anything but de minimis. Even if we were to conclude that Benavides had demonstr ated a prima facie case of discrimination in rega rd to being placed on paid ad ministrative leave, the City has identified a legitimate, nondiscriminator y reason for doing so, and Benavides has not shown pretext. See C.R. England, Inc. , 644 F.3d at 1038 (noting that under the familiar McDonnell Douglas framework, 4 once an employer responds to a prima facie case by “articulat[ing] a legitimate, nondiscrimi natory reason for its actions[,] . . . the burden then shifts back to th e plaintiff to show that th e [employer’s] stated reasons are merely pretextual” (quotation omitted)). Specifically, the C ity asserts that it placed Benavides on administrative leave because he was subpoenaed to testify before a grand jury and he was suspect ed of illegal gambling—a crime that Benavides ultimately pleaded guilty to co mmitting. Although Benavides contends that some of his co-workers gambled and were not placed on administrative leave, he has not undermined the City’s evidence that it had orde red administra tive leave for eleven other employees who had either be en charged with a crime or were facing

4 See McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).- 11 - criminal charges. In shor t, Benavides has not shown that the City’s “proffered explanation is unworthy of credence” or th at “a discriminatory reason more likely motivated” the decision to place him on paid administrative leave. Zamora v. Elite Logistics, Inc. , 478 F.3d 1160, 1166 (10th Cir. 2007). Summary judgment was proper on Be navides’ ADA-discrimination claim. D. Retaliation “A prima facie case of retaliation under the ADA requires: (1) that an employee engaged in protected opposition to discriminati on, (2) that a reasonable employee would have found the challenged acti on materially adverse, and (3) that a causal connection existed between the protect ed activity and the materially adverse action.” EEOC v. Picture People, Inc. , 684 F.3d 981, 988 (10t h Cir. 2012) (brackets and quotation omitted). Bena vides claims that the City retaliated against him for complaining about his co-workers’ conduct, and that the City acted against him by condoning a hostile work environment, not transferring him, and placing him on administrative leave. We reject each of these claims. Regarding retaliatory co-worker harass ment, an employer can be liable only if “its supervisory or manageme nt personnel either (1) orch estrate the harassment, or (2) know about the harassment and acquiesce in it in such a mann er as to condone and encourage the co-workers’ actions.” Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1265 (10th Cir. 1998). As we disc ussed above in Part II.A., the City- 12 - reasonably responded to Benavides’ allegati ons of harassment. He thus cannot survive summary judgment on a re taliatory-harassment theory. As for a retaliatory refu sal-to-transfer theory, Bena vides simply directs this court’s attention to his failure-to-acco mmodate theory. But his accommodation theory is little more than a summary allegation in his opening brief. In the absence of adequate argument concerning a retaliatory re fusal to transfer, we deem the theory waived. See Christian Heritage Acad. v. Okla . Secondary Sch. Activities Ass’n , 483 F.3d 1025, 1031 (10th Cir. 2007) (applying waiver when appellant identified issue in opening brief, but de voted less than one page to it and provided “no other argument and no citations”). Finally, we reject Benavides’ retaliato ry-administrative-leave argument on the same two bases discussed a bove regarding his discrimina tory-administrative-leave argument. See Part II.C. Specifically, Benavides did not suffer a materially adverse action by being placed on paid administrative leav e, and even if he did, he failed to show that the City’s reason for the leave was pretextual. III. FMLA Retaliation “The FMLA makes it unlawful for an employer to retaliate against an employee for exercising [his] rights to FMLA leave.” Khalik v. United Air Lines , 671 F.3d 1188, 1193 (10th Cir. 2012). To establish a pr ima facie case of FMLA retaliation, Benavides must show (1) he e ngaged in protected ac tivity, (2) the City took a materially adverse action, and (3) there is a causal c onnection between the- 13 - protected activity and the adverse action. Id. If a prima facie ca se is established, “the burden then shifts to the [City] to offe r a legitimate reason fo r [its action], and if it does, then [the burden shif ts] back to [Benavides] to present eviden ce to suggest the stated reason wa s pretextual.” Robert v. Bd. of Cnty. Comm’rs of Brown Cnty. , 691 F.3d 1211, 1219 (10th Cir. 2012). Benavides states that he “relies on the same arguments” he used “for proof of his ADA claims.” Aplt. Opening Br. at 45. We conclude that his FMLA-retaliation claim fails for the same reasons his ADA-retaliation claim failed. C ONCLUSION The judgment of the dist rict court is affirmed. Entered for the Court
Stephen H. Anderson Circuit Judge