UNITED STATES COURT 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 City of Oklahoma City’s motion for summary 

judgment on Benavides’ claims under the Americans with Disabilities Act (ADA), 

42 U.S.C. §§ 12131-12134, and the Family and Medical Leave Act (FMLA), 

 

*

 After examining the briefs and appellate record, this panel 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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 23, 2013

Elisabeth A. Shumaker 

Clerk of Court
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29 U.S.C. §§ 2611-2619. We have jurisdiction under 28 U.S.C. § 1291, and we 

affirm. 

BACKGROUND

 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 dilated cardiomyopathy, Benavides 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, Benavides complained to his immediate supervisor, Lieutenant 

Frank O’Brien, that his co-workers had been harassing him regarding his health 

problems and use of sick leave. Lieutenant O’Brien met with Benavides’ co-workers 

in the burglary unit and instructed them to stop commenting on Benavides’ use of 

sick leave. 

 On May 27, Benavides reduced his allegations to writing, stating that 

(1) co-workers had placed a can of cremated ashes on his desk because they had 

heard he was on his death bed; (2) co-workers had on several occasions placed a 

packaged tampon on his chair; (3) one co-worker created a video 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 military, he would have been fired; and 
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(5) a co-worker called him a “dumbass” at least four times regarding his use of time 

off. Lieutenant O’Brien again spoke with Benavides’ co-workers, and forwarded 

Benavides’ allegations up the chain of command. The police chief ordered an 

investigation. 

 Captain Kim Flowers began that investigation on June 17, interviewing 

Benavides about his allegations. She interviewed him again several 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” remarks 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 counseling[s]” to three co-workers regarding the 

“dumb ass” remarks and tampon incidents. Aplt. App., Vol. III at 526-28. 
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 On October 19, 2010, Benavides filed a discrimination charge with the 

Oklahoma Human Rights Commission. In February 2011, Benavides sued the City, 

the Department, the police chief, Captain Flowers, and various co-workers for 

violations of the ADA and the FMLA. The district court dismissed the claims against 

the individual defendants and the Department, and the case proceeded against only 

the City. 

 In June 2011, while still on paid administrative leave, Benavides 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, and 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. 
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DISCUSSION

I. Standards of Review 

 We review the district court’s order 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 judgment is appropriate “if the movant shows that 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). “When applying this standard, we view the 

evidence and draw reasonable inferences therefrom in the light most 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 compensation, job training, and other terms, 

conditions, and privileges of employment.” 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 issue 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 impairment that substantially limits one or more major life 

activities,” a “record of such an impairment,” or if they are “regarded as having such 

an impairment”), because other aspects of his ADA claims are dispositive. 

Additionally, a disability is not a prerequisite to an ADA-retaliation claim. Selenke 

v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). 
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Benavides identifies four ADA-based theories: hostile work environment; failure to 

accommodate; discrimination; 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 workplace was permeated 

with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or 

pervasive to alter the conditions of the victim’s employment and create an abusive 

working environment.” MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280 

(10th Cir. 2005) (brackets and quotation omitted). But the standard for imposing 

liability on an employer for workplace harassment is heightened where, as here, the 

perpetrators of that harassment were a plaintiff’s co-workers. Specifically, the 

employer, “as opposed to the individual directly responsible for the misbehavior, is 

liable, on a negligence theory, if it knew or should have known about 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 remedial 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 argument to the City’s remedial response 

to his harassment allegations. “[A] party waives those arguments that its opening 
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brief inadequately addresses.” Harsco Corp. v. Renner, 475 F.3d 1179, 1190 

(10th Cir. 2007). 

 Even if we were to construe Benavides’ legal briefs as adequately addressing 

the issue, the record indicates that the City reasonably responded to his allegations. 

Specifically, after Benavides brought the offending conduct and remarks to light, 

Lieutenant O’Brien twice instructed Benavides’ co-workers to cease. Captain 

Flowers soon thereafter initiated an extensive investigation, concluding that the 

cartoon video and “dumb ass” remarks violated departmental policy. And the City 

imposed discipline for not only the infractions found by Captain Flowers, but also for 

the tampon incidents. Although the City placed Benavides on leave before formally 

disciplining his co-workers, Benavides identifies nothing indicating that his coworkers continued their harassment after 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 (10th Cir. 2008) (quotation omitted). In any event, 

Benavides has not carried his burden of demonstrating 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 establish 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 create a hostile work environment). 
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employee] bears the burden of establishing that the employer’s conduct was 

unreasonable.” (quotation omitted)). 

 We conclude that there is no genuine issue of fact as to whether the City took 

prompt and appropriate remedial action in response to Benavides’ 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). Benavides argues that he “made 

several requests to the City for job transfers” “to address his serious medical 

condition,” but “[o]n each occasion [he] was rejected and remained in the burglary 

detail.” Aplt. Opening Br. at 36. But 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 generally 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 accommodate, a plaintiff carries the burden of 

demonstrating the existence of a facially reasonable accommodation.”). 
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C. Discriminatory Administrative-Leave Conditions 

 Benavides argues that while on administrative 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 prima 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 discriminated against because of his disability.”

Butler v. City of Prairie Vill., 172 F.3d 736, 748 (10th Cir. 1999) (footnotes and 

quotation omitted). Benavides’ argument 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 court 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 alleged adverse action caused more than de minimis

harm to or a de minimis impact upon [his] job opportunities or status.” Id. (quotation 

omitted). 
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 Benavides does not dispute that he was paid his full salary while on leave. 

Rather, he complains that he could not use his police background in side jobs while 

on leave. But the only side job he identified during his deposition 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 restriction on Benavides’ 

administrative leave was anything but de minimis. 

 Even if we were to conclude that Benavides had demonstrated a prima facie 

case of discrimination in regard to being placed on paid administrative leave, the City 

has identified a legitimate, nondiscriminatory 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, nondiscriminatory reason for its actions[,] . . . the 

burden then shifts back to the plaintiff to show that the [employer’s] stated reasons 

are merely pretextual” (quotation omitted)). Specifically, the City asserts that it 

placed Benavides on administrative leave because he was subpoenaed to testify 

before a grand jury and he was suspected of illegal gambling—a crime that 

Benavides ultimately pleaded guilty to committing. 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 ordered administrative leave for 

eleven other employees who had either been charged with a crime or were facing 

 

4 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 
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criminal charges. In short, Benavides has not shown that the City’s “proffered 

explanation is unworthy of credence” or that “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 Benavides’ ADA-discrimination claim. 

D. Retaliation 

 “A prima facie case of retaliation under the ADA requires: (1) that an 

employee engaged in protected opposition to discrimination, (2) that a reasonable 

employee would have found the challenged action materially adverse, and (3) that a 

causal connection existed between the protected activity and the materially adverse 

action.” EEOC v. Picture People, Inc., 684 F.3d 981, 988 (10th Cir. 2012) (brackets 

and quotation omitted). Benavides 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 harassment, an employer can be liable only if 

“its supervisory or management personnel either (1) orchestrate the harassment, or 

(2) know about the harassment and acquiesce in it in such a manner 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 discussed above in Part II.A., the City 
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reasonably responded to Benavides’ allegations of harassment. He thus cannot 

survive summary judgment on a retaliatory-harassment theory. 

 As for a retaliatory refusal-to-transfer theory, Benavides simply directs this 

court’s attention to his failure-to-accommodate 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 refusal 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 devoted less than one page to it and provided “no other 

argument and no citations”). 

 Finally, we reject Benavides’ retaliatory-administrative-leave argument on the 

same two bases discussed above regarding his discriminatory-administrative-leave 

argument. See Part II.C. Specifically, Benavides did not suffer a materially adverse 

action by being placed on paid administrative leave, 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 prima facie case of FMLA 

retaliation, Benavides must show (1) he engaged in protected activity, (2) the City 

took a materially adverse action, and (3) there is a causal connection between the 
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protected activity and the adverse action. Id. If a prima facie case is established, 

“the burden then shifts to the [City] to offer a legitimate reason for [its action], and if 

it does, then [the burden shifts] back to [Benavides] to present evidence to suggest 

the stated reason was 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. 

CONCLUSION

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Stephen H. Anderson 

 Circuit Judge