UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ ABIODUN SOTUNDE, Plaintiff - Appellant,

v. SAFEWAY, INC., Defendant - Appellee. No. 16-1494 (D.C. No. 1:15- CV-01139-MEH) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before KELLY , PHILLIPS , and McHUGH , Circuit Judges.

_________________________________ Abiodun Sotunde, a naturalized United Stat es citizen origina lly from Nigeria, appeals from the district c ourt’s grant of summary judgmen t to his former employer, Safeway, Inc., on his claims of disparate treatment, hostile work environment, retaliation, and constructive discharge in viol ation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Exercising jurisdiction un der 28 U.S.C. § 1291, we reverse and remand for further proceedings on certain disparate treatment claims. We affirm the grant of summary judgmen t to Safeway on the remaining claims.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 24, 2017
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Safeway, a grocery chain, runs a Denver Distributi on Center to receive and distribute the products it se lls in its retail st ores. The center in cludes warehouses for meat, perishables, frozen foods, produce, a nd grocery items. At the relevant times, Donald Grambusch was the Director of Dist ribution. The rest of the management chain consisted of (in desce nding order) Managers, Superinten dents, and Supervisors. In October 2004, Grambusch hired Sotunde to work in the Produce Warehouse. In February 2005, Grambusch pr omoted Sotunde to Supervisor, also in the Produce Warehouse. While employed at Safeway, Sotunde earned a second bachelor’s degree in finance and a master ’s degree in business administration (MBA) and objectively improved the performance of the Produce Warehouse. Nevertheless, he was never promoted above Supervis or. Sotunde resigned from Safeway’s employment in May 2013. After he resigned, Sotunde brought th is suit under Title VII and § 1981. Detailing instances of prefer ential treatment of white em ployees, he claimed he was denied promotion because of race, color, and national origin discrimination; he was subjected to a racially hostile work environm ent; he was subjected to retaliation after he complained to Safeway about unfair treatment; and he was constructively discharged. The district cour t, a magistrate judge presid ing by consent of the parties under 28 U.S.C. § 636(c), granted Safe way’s motion for summary judgment on all claims.3 ANALYSIS “We review the district court’s gran t of summary judgment de novo, applying the same standard as the district court.” Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011). We view the evidence in the light most favorable to and draw all reasonable inferences in fa vor of Sotunde, the nonmoving party. Lounds v. Lincare, Inc. , 812 F.3d 1208, 1220 (10th Cir. 2015). 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). “A dispute is genuine if ther e is sufficient evidence so th at a rational trier of fact could resolve the issue either way. A fact is material if under the substa ntive law it is essential to the proper disposition of the claim.” Crowe , 649 F.3d at 1194 (citation and internal quotation marks omitted). We do not separately discuss the Title VII and § 1981 cl aims because they share the same legal standards. See Parker Excavating, In c. v. Lafarge W., Inc. , 863 F.3d 1213, 1220 (10th Cir. 2017) (retaliation); Lounds , 812 F.3d at 1221 (hostile work environment); Crowe , 649 F.3d at 1194 (dis parate treatment). I. Failure to Promote Sotunde focuses his dispar ate treatment discrimination claims on three failures to promote him in 2012. All three positions—two for Manager and one for Superintendent—went to white males. Th e district court applied the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). In that framework, “t he plaintiff must fi rst establish a prima4 facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, non-discriminatory . . . rationale for th e adverse employment action. If the defendant does so, the plai ntiff must show that the defendant’s proffered rationale is pretextual.” Crowe , 649 F.3d at 1195. For the Manager positions, the district court held that Sotund e had established his prima facie case but had not presented sufficient evidence of pret ext. For the Superintendent position, it held that he had not esta blished a prima facie case. A. Manager Positions i. Factual and Legal Background In April 2012, Safeway posted two Manager positions at the Denver Distribution Center. The postin gs required a four-year coll ege degree in logistics or seven years of related work experience. Sotunde applied, a nd Safeway’s talent acquisition team identified him as a candidate who should pr oceed to the next step in the process. Grambusch decided who to in terview and who would get the jobs. He did not select Sotunde for an interview. Ultimately, he awarded the positions to Richard Pawelcik, a white Denver Distributi on Center employee with twenty years’ experience, ten of them as a Supervisor, and Jason Ce sario, a white out-of-state candidate who had ma naged warehouse operations for Chrysler and had previously worked for Safeway in a Califo rnia distribution center. The district court held that Sotunde ha d established a prima facie case and that Safeway had proffered legitimate, non-disc riminatory reasons—t hat the “‘candidates chosen had far greater poten tial for success . . . [and] ha d more relevant warehouse5 management and leadership experience than Sotunde,’” and that Safeway “had concerns about [Sotunde’s] leadership and communication skills.” Aplt. App., Vol. 2 at 517 (quoting id. , Vol. 1 at 53). The district court then held that Sotunde had failed to offer evidence that would allow a reasonable jury to fi nd that Safeway’s proffered reasons were a pretext for discrimination. “[A] plaintiff’s prima facie case, co mbined with suffici ent evidence to find that the employer’s asserted ju stification is false, may pe rmit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 148 (2000). A pl aintiff may establish pretext by showing “such weaknesses, implausibilitie s, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons fo r its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Bryant v. Farmers Ins. Exch. , 432 F.3d 1114, 1125 (10t h Cir. 2005) (internal quotation marks omitted). “[ P]laintiffs are not limited in their proof on this score; pretext can be shown in any number of ways . . . .” Orr v. City of Albuquerque , 531 F.3d 1210, 1215 (10th Ci r. 2008). “[A]t the summary judgment stage, the inference of discrimination permitted by evid ence of pretext must be resolved in favor of the plaintiff.” Bryant , 432 F.3d at 1125. ii. Evidence of Pretext We disagree with the district court’s evaluation of the evidence and conclude that the following evidence, viewed as a whole and in th e light most favorable to6 Sotunde, would allow a reasonable factfi nder to disbelieve Safeway’s asserted explanations for not interviewi ng him for the Manager positions. 1 a. Qualifications “An employer’s failure to give more than sham or pro forma consideration to a candidate or his or her qualif ications, coupled with othe r circumstantial evidence of discriminatory intent, can demonstrate pretext.” Danville v. Reg’l Lab Corp. , 292 F.3d 1246, 1251 (10th Cir. 2002). “While it is the employer’s understanding of an employee’s qualifications that counts,” a “reasonable infe rence that [the successful candidate’s] qualifications we re unreasonably inflated . . . , while plaintiff’s were unreasonably denigrated,” can be re levant to a pretext inquiry. Id. at 1252. From an educational standpoint, a r easonable juror could find Sotunde was more qualified than either successful candidate. Pawelcik had no college degree, and it appears that Cesario had a bachelor’s degree in busin ess. But Sotunde had two bachelor’s degrees and an MBA. A nd from a performance standpoint, Sotunde produced evidence that he met his indivi dual and department goals and increased efficiency in the Produce Warehouse, and th e talent acquisitions team identified him as a candidate who should proceed. Nevert heless, Grambusch did not offer him an interview. Moreover, Grambusch later asse rted he had concerns about Sotunde, but

1 Sotunde’s opening brief identifies additional facts that we do not discuss because he did not invoke them in his di strict-court pretext discussion. District courts should not be faulte d for failing to uncover fact s that a nonmovant does not identify in opposing summary judgment. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 672 (10th Cir. 1998). But our decision today should not be read to preclude Sotunde from relying on thos e facts on remand, if appropriate.7 as discussed below, successful candidate Pawelcik suffere d from deficits comparable to ones Grambusch identified with regard to Sotunde. These discrepancies could lead a reasona ble juror to conclude that Grambusch gave only pro forma consideration to Sotunde’s application and/or unreasonably inflated the succes sful candidates’ qualifications while unreasonably denigrating Sotunde’s. b. Procedural Irregularities “[D]isturbing procedural irregularities can satisfy the requirements of a pretext claim.” Garrett v. Hewlett-Packard Co. , 305 F.3d 1210, 1220 (10th Cir. 2002) (internal quotation ma rks omitted). The job postings in the record show that Safeway managerial positions commonly prefer a college degree in either logistics or busine ss. But Grambusch acknowledged that he could a dd or subtract qualifications for openings in the Denver Distribution Center. The two 2012 Mana ger postings (1) limited the preferred college degree to logistics, omitting a business degree, and (2) included a years-of-experience degree equivalent. A reasonable juror could infer that Grambusch had the ability to, and actually chose to, manipul ate the qualifications to disadvantage Sotunde in relation to othe r candidates, particularly Pawelcik. c. Prior Treatment Evidence of pretext may include “facts as to the [employer’s] treatment of [the employee] during his prior term of employment.” McDonnell Douglas , 411 U.S. at 804. Sotunde submitted evidence that Gr ambusch treated Sotunde poorly and, when8 Sotunde discussed his concerns with Gr ambusch, Grambusch made comments that may have referred to Sotunde’ s race or national origin. A particular incident occurred in No vember 2010, when Sotunde arranged to take a day off to help his mother after she had surgery. Nothing in the record indicates that the absence was not properl y scheduled. Yet Grambusch called him at home, asking where he was. Wh en Sotunde explained that he had time off to help his mother, Grambusch said, “You know, Abby, if you don’t want to [be] part of this team, just let me know, so I’ll replace you.” Aplt. A pp., Vol. 1 at 184. Soon thereafter, in Dece mber 2010, Sotunde told Grambusch he felt that Grambusch treated him differently from ot her employees. Grambusch “responded by saying that he has the power to do what ever he wants and can call [Sotunde] whenever he wishes.” Id. at 114. He then made comm ents that employees at the distribution center “‘don’t pe rceive [Sotunde] well’ and th at over here in the U.S., ‘perception is reality,’” and fu rther stated, “‘Abby, you can’t call me racist because I hired you.’” Id. A reasonable decision-maker could infe r that Grambusch treated Sotunde poorly and entertained opinions of Sotund e based on his race or national origin. While “stray racial comments should typically not be admitted unless the plaintiff can link them to personnel decisions or the individuals maki ng those decisions,” Heno v. Sprint/United Mgmt. Co. , 208 F.3d 847, 856 (10th Cir. 2000), these remarks were made by Grambusch, who was the de cision-maker for th e Manager positions.9 d. Differential Treatment Disparate treatment of similarly situated employ ees can contribute to a reasonable inference of pretex t and defeat the employer’s claimed legitimate business

reason. Trujillo v. PacifiCorp , 524 F.3d 1149, 1159-60 (10th Cir. 2008); see also McDonnell Douglas , 411 U.S. at 804 (characteriz ing differential treatment as “[e]specially relevant” to showing pretext). Sotunde presented evidence that Grambusch told him that he would not be promoted because his warehouse had not been producing for ten years, yet Grambusch had promoted Pawelcik out of that same warehouse th ree years earlier. Moreover, Grambusch testifie d in his deposition that ab senteeism and occupational injuries were important considerations, but he then acknowledged that Pawelcik had been counseled about both absences and injuries. And although Grambusch expressed concern about Sotu nde’s relationships with other employees, he also conceded that Pawelcik did not get along w ith some other employees. Based on this evidence, a reasonable juror could doubt the veracity of Grambusch ’s explanation for not considering Sotunde fo r the Manager positions. See Danville , 292 F.3d at 1252 (noting, in concluding that th e plaintiff made a su fficient showing of pretext, that the successful candidate “suffere d from defects arguably equa l to those advanced to justify denying plaintiff an interview”). e. Subjective Criteria “[D]iscrimination is more likely where subjective rather than objective criteria are used to reject a ca ndidate’s application.” Id. ; see also Garrett , 305 F.3d at 121810 (“Courts view with skepticis m subjective evaluation methods such as the one here.”). Safeway’s legitimate, non-discriminatory explanations—focusing on “potential for success” and “leadership a nd communications skills,” Aplt. App., Vol. 1 at 53— make it evident that subjective considerations were used to reject his applications. True, “the existence of s ubjective criteria alone is not considered evidence of pretext,” but “the existenc e of other circumstantial ev idence may provoke a stronger inference of discrimination in the contex t of subjective evaluation standards.” Riggs v. AirTran Airways, Inc. , 497 F.3d 1108, 1120 (10th Cir. 2007). f. Minority Employment Finally, evidence of an employer’s “gener al policy and practic e with respect to minority employment” may also be relevant to pretext. McDonnell Douglas , 411 U.S. at 804-05. 2 Sotunde presented evid ence that there were no African-American Managers while he worked at the Denver Distribution Center, and there were no other African- American Supervisors until after he complained of discrimination. iii. Conclusion Some or all of these pieces of evid ence might not be enough in and of themselves to create a genuine issue of material fact as to pretext. See, e.g., Jaramillo v. Colo. Judicial Dep’t , 427 F.3d 1303, 1308-09 (10th Cir. 2005) (per curiam) (“[M]inor differe nces between a plaintiff’s qua lifications and those of a

2 We note, however, that the district c ourt must carefully ev aluate statistical evidence. See, e.g., Luster v. Vilsack , 667 F.3d 1089, 1094 (10th Cir. 2011).11 successful applicant are not suff icient to show pretext.”); Chavez v. New Mexico , 397 F.3d 826, 832 (10th Ci r. 2005) (“[S]imply being the lone member of an identifiable racial or ethnic minority with in a supervisor’s chain of command, without more, does not demonstr ate racial animus.”). Bu t we do not “look at each piece of evidence in isolation; rather, in assessing whet her plaintiffs have shown pretext, we are obliged to consider their evidence in its totality.” Orr , 531 F.3d at 1215. Reviewed in the light most favorable to Sotunde, we ar e persuaded that the totality of the evidence is sufficient for a reasonable ju ry to disbelieve Safeway’s explanations for not interviewing Sotunde for the Manager positions. Accordingly, we reverse the grant of summary j udgment on the claims regarding the non-promotion to the Manage r positions and remand for fu rther proceedings. B. Superintendent Position In August 2012, white male Brand on Frazee was named to a newly created Superintendent position at the Denver Di stribution Center. The position was not posted for applications, so Sotunde did not apply. Safeway asse rts that the position was created especially for Fr azee as part of Safeway’s M ilitary Veterans Recruitment Program. The district court held that So tunde had failed to demonstrate the second prong of the prima facie case because th e position was not pos ted and he did not apply. Sotunde argues that he neverthele ss can establish a pr ima facie case because he was “in the group of people who might reasonably be inte rested in the particular job,” Bennett v. Quark, Inc. , 258 F.3d 1220, 1228 (10th Cir. 2001) (internal quotation12 marks omitted), overruled in part on othe r grounds as explained in Boyer v. Cordant Techs., Inc. , 316 F.3d 1137, 1140 (10th Cir. 2003). Even assuming that Sotu nde can establish a prima facie case, however, summary judgment for Safeway still is appropriate. 3 Safeway’s legitimate non-discriminatory reason for not selecti ng Sotunde is that the Superintendent position was created for Frazee as part of a corporate program to employ military veterans. Grambusch testif ied in his deposition, and Safeway asserted in its discovery responses, that th e decision to make Frazee a Superintendent was made by Safeway’s corporate office, not by manageme nt in the Denver Di stribution Center. Sotunde has not presented any evidence to undermine these as sertions. In his deposition, he admitted that his percepti on that Grambusch was involved in the decision is based on hearsay and not his ow n knowledge, and he “[doesn’t] have any basis for disputing” Grambusch’s test imony that the decision was made by the corporate office. Aplt. App., Vol. 1 at 80. Based on this record, Sotunde has failed to identify a genuine issue of material fact as to whether Safeway’s asserted non-discriminatory reason was pretext for discrimination ag ainst him. We therefore affirm the grant of summary judgment to Safeway on the disparate treatment claims concerning the August 2012 non-selecti on for the Superintendent position.

3 We may affirm on any ground supported by the record. Johnson v. Weld Cty. , 594 F.3d 1202, 1215 (10th Cir. 2010).13 II. Hostile Work Environment Sotunde also claims that he was s ubjected to a racially hostile work environment. For this claim, he “is require d to demonstrate that a rational jury could conclude that the workplace is permeated w ith discriminatory in timidation, ridicule, and insult that is sufficien tly severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Jones v. Barnhart , 349 F.3d 1260, 1268 (10th Cir. 2003) (internal quot ation marks omitted). The district court concluded that Sotunde had failed to show that he was subjected to discriminatory harassment that was severe or pervasive. We agree with the district court’s evaluation of the hostile work envir onment claims. In assessing whether cond uct is sufficiently severe or pervasive, the court “must examine all of the circumstance s alleged including the frequency of the discriminatory conduct; its severity; wh ether it is physically threatening or humiliating, or a mere offens ive utterance; and whethe r it unreasonably interferes with an employee’s wo rk performance.” Id. (internal quotation marks omitted). “Moreover, courts assess whether the work environment is both subjectively and objectively hostile or abusive.” Lounds , 812 F.3d at 1222 (brackets and internal quotation marks omitted). “In other words, it is not enough that a particular plaintiff deems the work environment host ile; it must also be of th e character that it would be deemed hostile by a reasonable employee unde r the same or similar circumstances.” Id. at 1222-23. It is insuffici ent for a plaintiff to show “a few isolated incidents of14 racial enmity”; instead, “there must be a steady ba rrage of opprobrious racial
comments.” Id. at 1223 (internal quota tion marks omitted). Before the district court, Sotunde iden tified several incidents and comments to establish a hostile work environment. 4 He relied on the December 2010 conversation with Grambusch, in which Grambusch stated that Sotunde could not call Grambusch a racist because he hired Sotunde. Sotunde also relied on the fa ct that in and around September 2012, he was not included in certain conversations and e-mail communications about his work, including di scussions of cutting shifts in the Produce Warehouse and changes to the load ing docks. He further pointed to a December 2012 incident in whic h he called in sick. His supervisor, George Scott, demanded that he come in to work even though he was taking a prescription painkiller. After Sotunde’s wife, a pharmacist, told Sc ott that Sotunde could not work in a warehouse around heavy machinery wh ile on the painkiller, Scott told other employees that Sotunde’s wife had a big mouth and relayed details of the private conversation. Finally, sometime in 2013, there were conve rsations among the employees on the Produce Warehouse floor that Sotunde would not be employed by Safeway much longer. These incidents are insufficient for a reasonable jury to find Sotunde was subjected to an objectively racially hostile work environment. They simply do not

4 With regard to Sotunde’s hostile work environment, retaliation, and constructive discharge claims, we consider only those facts that Sotunde identified in his respective arguments in th e district court, not additi onal facts mustered in the opening appellate brief. See Adler , 144 F.3d at 672.15 rise to the level of conduct that we have he ld creates a genuine is sue of material fact as to severity or pervasiveness. See, e.g., Tademy v. Union Pac. Corp. , 614 F.3d 1132, 1144-45 (10th Cir. 2008) (involving a series of harassing acts, including “various graffiti and cartoons combined with the words ‘nigger’ and ‘nigger go home’ etched on [the plaintiff’s] locker,” that culminated in a lynching noose). Tellingly, in at least two cases involving more egregious facts than those alleged by Sotunde, we held that the evidence of pervasiveness cr eated a “close” question. Lounds , 812 F.3d at 1213-17, 1227 (involving multiple and continual references to racial stereotypes, a discus sion of lynching, habitual us e of the term “nigga” and references to “the hood,” and direction to address a vice pr esident with “yes massa”); Herrera v. Lufk in Indus., Inc. , 474 F.3d 675, 680-82, 683 (10th Cir. 2007) (involving several discrete incidents of racial harassment over four years and ongoing harassment (including comments referring to plaintiff’s ethnicity every two to three days), in addition to comparatively poorer tr eatment of plaintiff and his son, the only Hispanic employees). In comparison, So tunde did not identify sufficient facts to create even that close a quest ion. Rather, his facts are mo re analogous to those in our decisions concluding that the alleged actio ns failed to support a claim for a hostile work environment. See, e.g. , Morris v. City of Colo. Springs , 666 F.3d 654, 665-66 (10th Cir. 2012) ( holding evidence of isolated phys ical contact, throwing human tissue, and yelling and maki ng demeaning comments about plaintiff’s work was insufficient); McGowan v. City of Eufala , 472 F.3d 736, 743- 44 (10th Cir. 2006) (noting that many of plaintiff’ s allegations, such as an offi cer’s “petty criticism of her16 work” were “of a trivial nature and do not rise to a claim of an ‘abusive’ materially adverse work environment”); Chavez , 397 F.3d at 832 (holding that two racially offensive remarks “[fell] fa r short of the ‘steady barra ge’ required for a [racially] hostile environment claim”). We therefore affirm the gr ant of summary judgment to Safeway on the hostile work environment claims. III. Retaliation In May 2012, Sotunde complained to the director of hum an resources about not being promoted to Manager and his perception that only white males were promoted. Then in November 2012, he fi led a charge of discrimination with the Equal Employment Opportunity Commission (E EOC). Sotunde claims that after his internal complaints and hi s EEOC charge, Safeway subj ected him to retaliation. Under the McDonnell Douglas framework, a plaintiff’s pr ima facie case of retaliation requires him to show, among ot her things, that he was s ubjected to action that a reasonable person would have found to be “m aterially adverse.” Parker Excavating , 863 F.3d at 1220. The district court held th at Mr. Sotunde had failed to satisfy this requirement. We agree. “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produ ces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 67 (2006). Therefore, the action must be one that is materially adverse, meaning that it “well might have di ssuaded a reasonable worker from making or supporting a ch arge of discrimination.” Id. at 68 (internal quotation marks omitted). “We speak of material adversity because we be lieve it is important17 to separate significant from trivial harms.” Id. “An employee’s decision to report discriminatory behavior cannot immunize th at employee from those petty slights or minor annoyances that often take place at wo rk and that all empl oyees experience.” Id. The standard for judging harm is objective. Id. Before the district court, Mr. Sotunde cited the follo wing as materially adverse actions: (1) in and around September 2012 , he was excluded from conversations and e-mail communications in whic h he should have been incl uded; (2) in January 2013, Scott and another managerial employee sent e-mails questioning his work, and they failed to respond to Sotund e’s efforts to learn about the alleged problems; (3) on April 12, 2013, Scott gave him a lowe r performance review for 2012; and (4) sometime in 2013, management made comments about Sotund e’s future with Safeway and told employees that he was planning on quitting. Much of this evidence, however, describes actions in the nature of snubs or slights that are insu fficient to support a retaliation claim. See Johnson v. Weld Cty. , 594 F.3d 1202, 1216 (10th Cir. 2010) (stating that “alleg ed snubs” that included supervisors giving her the “‘cold shoulde r,’” sitting farther away from her at meetings, being too busy to answer her que stions, and generally trying to avoid her were insufficient to support a claim of retaliation). Regarding Sotunde’s exclusion from certain communications and the quest ioning of his work, Sotunde has not identified any evidence showing how these actions actually in terfered with his ability to do his job, which “is probative of whet her the [action] was serious enough to dissuade a reasonable worker from filing or pursuing a discrimination claim,”18 Daniels v. United Parcel Serv., Inc. , 701 F.3d 620, 640 (10th Cir. 2012) (stating that decreased communications from supervisor were not materi ally adverse because they did not affect plaintiff’s abili ty to do her job satisfactor ily). Finally, regarding the performance evaluation for 2012, the overall rating wa s “successfully meets expectations” and Sotunde received the same merit increase he had received in past years. Sotunde asserts that the lower performance review made him ineligible for promotion, but as the distri ct court noted, that asserti on remains unsupported by any evidence in the record. “M ere allegations unsupported by further evidence . . . are insufficient to surv ive a motion for summary judgment.” Baca v. Sklar , 398 F.3d 1210, 1216 (10th Cir. 2005). The district court theref ore did not err in relying on Meredith v. Beech Aircraft Corp. , 18 F.3d 890, 896 (10th Ci r. 1994), in which this court held that a lower performance evaluati on that still reflected satisfactory remarks did not support a claim of retaliation. For these reasons, we affirm the gran t of summary judgment to Safeway on the retaliation claims. IV. Constructive Discharge “A constructive discharge occurs when an employer, through unlawful acts, makes working conditions so intolerable th at a reasonable person in the employee’s position would feel forced to resign.” Exum v. U.S. Olympic Comm. , 389 F.3d 1130, 1135 (10th Cir. 2004). “Working conditions mu st be so severe that the plaintiff simply had no choice but to quit.” Id. The district court held that Sotunde had failed to present sufficient ev idence to meet this st andard. We agree.19 “When examining a constructive discha rge claim, we disregard both the employee’s subjective view of the wor kplace environment and the employer’s subjective intentions re garding the employee.” Baca , 398 F.3d at 1216. “The question is not whether working conditions at the facility were difficult or unpleasant.” Exum , 389 F.3d at 1135 (internal quotati on marks omitted). Instead, a plaintiff “must allege facts sufficient to demonstrate un der an objective test that a reasonable person woul d have viewed [his] working conditions as intolerable.”
Heno , 208 F.3d at 858 (internal quotation marks omitted). “Plaintiff must show that, at the time of his resignati on, his employer did not allow him the opportunity to make a free choice regarding his employment relationship.” Exum , 389 F.3d at 1135. “[E]ven requiring an employee to choose be tween resignation and termination is not necessarily a constructive discharge, unl ess the employee’s de cision is, for some reason, involuntary.” Id

. Mr. Sotunde relies on the same conduc t he proffers to support his other claims—the failures to promote him, the exclusion from work-related e-mail messages and meetings, the lower performan ce review for 2012, Scott’s discrediting his work, and management sowing rumors that he would not be there much longer. He also alleges Safeway fail ed to investigate his compla ints of discrimination and retaliation. This evidence is insufficien t to establish, objectively, that a reasonable person would have viewed the working conditions as intolerable. See Sandoval v. City of Boulder , 388 F.3d 1312, 1325-26 (10th Cir. 2004) (finding no constructive discharge20 where the plaintiff was investigated a nd reassigned to another position whose conditions were not obj ectively intolerable); Heno , 208 F.3d at 858 (holding that employee’s “feelings that she was being isolated” we re not relevant to the constructive discharge inquiry); Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 533-34 (10th Cir. 1998) (finding no constructive discharge when the plaintiff was treated differently from other teacher s with regard to sick l eave and was reprimanded for walking out of a meeting, because the wo rk environment, “wh ile unpleasant,” was not objectively intolerable). And when “fact s fail to meet the threshold required for a retaliation claim—a material adverse harm—it follows that those same facts cannot satisfy the higher threshol d required for a construc tive discharge claim.” Johnson , 594 F.3d at 1217 n.6. As discussed above , the facts fail to meet the threshold required for a retaliation claim, as does th e additional allegation that Safeway failed to investigate his complaints, see Daniels , 701 F.3d at 640 (stating that a failure to investigate a complaint cannot be considered retaliatory where such failure does not lead to demonstrable harm and “leaves an employee no worse off than before the complaint was filed”). Acco rdingly, we affirm the gran t of summary judgment to Safeway on the constructive discharge claims. CONCLUSION We reverse the grant of summary judgm ent to Safeway on the Title VII and § 1981 disparate-treatment claims concer ning the non-selection for the Manager positions in April 2012, and we remand those claims for further proceedings. We affirm the grant of summary judgment to Safeway on the disparate treatment claims21 concerning the non-selection for the Superi ntendent position in August 2012, the hostile work environment discrimination cl aims, the retaliati on claims, and the constructive discharge claims.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge