* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 10, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

OLIVER TAPIA,

Plaintiff-Appellant, v. CITY OF ALBUQUERQUE,

Defendant-Appellee. No. 05-2028 (D.C. No. 03-0378 MV/WDS)

(D. N.M.)

ORDER AND JUDGMENT *

Before TYMKOVICH , PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Oliver Tapia sued his employer, the City of Albuque rque, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e- 3, alleging that he was retaliated against for exercising his rights under Title VII. The district court-2-

granted the City’s motion for summary judgment, hol ding that Tapia had not presented a prima facie case of retaliation. We ex ercise jurisdiction under 28 U.S.C. § 1291, and affirm. I. Background Tapia began working for the City in 1987. During the relevant time, from April 2000 until August 2002, Aplt. Br. at 7, he wo rked for the Public Works Department as a field collector, turning on and off water connections and investigating illegal water usage. Tapia’s direct supervisors were first Tina Archuleta and later Barbara Romero. They in turn r eported to Sheron Matson, Manager of Customer Services for the Public Works D epartment. Sometime in 2001, Tapia reported to his union that he was subjected to harassment and discrimination. In a letter sent to Matson by the union on August 28, 2001, which followed up on an August 17 meeting , the union representative set forth Tapia’s complaints that he was treated un fairly, he was required to adhere to certain policies and job requirements that other employees in similar jobs did not have to adhere to, and he was monitore d. Aplee. Supp. App. at 45. The letter also stated that if Tapia continued to b e monitored and required to perform additional duties, the union would file a f ormal grievance. After she received this letter, Matson asked for more specifi c information, but she received-3-

none. Id. at 158-59. She did not alter her management of Tapia. Id. at 159. No formal grievance was ever filed. From September 14, 2001, to November 14, 2001, Tapi a took Family and Medical Leave Act (FMLA) leave for work-related dep ression and stress. Before returning to work, he requested a transfer due to c onflicts with Archuleta and Matson. In a memorandum dated November 26, 2001, L aVerne Armijo, a City Labor Relations Officer, stated that she had told T apia in a November 6 meeting that she could not approve a transfer for three rea sons: (1) a transfer was not available because of a hiring freeze; (2) the recen t change in administrations after the November elections; and (3) Tapia’s reason—his dislike of Matson and Archuleta—was not a favored basis for a transfer. Aplt. App. at 113. The memorandum also noted that when Armijo told Tapia that it would be another month before she could finally determine if he coul d be transferred, he responded that if she put him back in his same job, he was af raid he would “knock her [meaning either Archuleta’s or Matson’s] head off.” Id. Armijo warned him that this was a serious threat. On November 19, 2001, Tapia filed a complaint with the Equal Employment Opportunity Commission (EEOC) asserting that he had been retaliated against and the retaliation consisted of Matson watching his work more closely than she watched the work of others. On De cember 4, the City received1 Tapia testified at his deposition that he did not t ell Matson that he had filed

an EEOC complaint, and he did not know when she learned of it. Neither the pages of Matson’s deposition included in the partie s’ appendices nor her affidavit indicate that she knew of the EEOC complaint. Alth ough the record shows that Matson knew about the union letter, the record does not show that she had knowledge of Tapia’s EEOC activity. -4- notice of the charge. That same day, Matson, who h ad no knowledge of the EEOC complaint, 1 gave Tapia a letter of instruction directing him n ot to make verbal threats to employees. The letter warned that future disciplinary action was possible if Tapia made another threat. Id. at 112. The Public Works Department received notice of the EEOC charge on December 6. In a July 23, 2002 letter, Tapia again requested a transfer based on perceived problems with Matson. Accordingly, on Au gust 12, he was transferred to a different location within the same department, reporting to a different supervisor. In 2003, Tapia applied for a new posit ion as a utility technician. Although he was selected for the job by a committee , the Department Director, who had final hiring authority, chose other persons he deemed more qualified for the job. Also in 2003, Tapia filed this Title VII action ass erting retaliation. In response to the City’s motion for summary judgment, Tapia alleged that he suffered five separate adverse employment actions: (1) he was required to perform jobs that other employees were not requiredto perform; (2) unlike other-5-

employees, his supervisors monitored him in a haras sing and retaliatory way; (3) he was disciplined by the letter of instruction ; (4) he was subjected to continuing harassment after he returned to work fol lowing his FMLA absence, filed his EEOC complaint and made other informal co mplaints to his supervisors; and (5) he was denied a transfer to the utility tec hnician position for which he was selected and qualified. The district court granted the City’s motion for su mmary judgment, finding that Tapia failed to present a prima facie case of retaliation. The court found that only the second claim—that he was monitored in a harassing manner by his supervisors—could constitute an adverse employment action, and only if the harassment was sufficiently severe. But the court also found that Tapia failed to show a causal link between his supervisor’s behavio r and his protected activities. II. Analysis We review the district court’s grant of summary jud gment de novo, viewing the record evidence in the light most favorable to Tapia. See Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). “We affirmunless [he] points to evidence in the record establishing a genuine issue of material fact.” Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1209 (10th Cir. 2003) (citing Fed. R. Civ. P. 56(c)). He cannot create a genuine issue of material fact with-6-

unsupported, conclusory allegations. Annett v. Univ. of Kan. , 371 F.3d 1233, 1237 (10th Cir. 2004). Title VII prohibits retaliation against an employee who opposes any unlawful employment practices or files a charge with the EEOC. See 42 U.S.C. § 2000e-3(a). Because there is no direct evidence of retaliation in this case, McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), provides the proper three-step framework for analysis. See Annett , 371 F.3d at 1237. Under that framework, an employee must first present a prima facie case of retaliation. Id. If the employee does so, the burden then shifts to the employer “to produce a legitimate, nondiscriminatory justification for tak ing the disputed employment action.” Id. If the employer satisfies this burden, the employ ee then must provide evidence that the employer’s proffered reasons are merely a pretext for discrimination. Id. Like the district court, we conclude that Tapia f ailed to show a prima facie case of retaliation. Thus, we do notaddress the last two steps of the analysis. For a prima facie case of retaliation, an employee must prove that (1) he “engaged in protected opposition to discrimination; ” (2) he suffered “an adverse employment action”; and (3) “there exists a causal connection between the protected activity and the adverse action.” Stover v. Martinez , 382 F.3d 1064, 1071 (10th Cir. 2004). It is undisputed that Tapiamet the first requirement.-7-

The City does not dispute that Title VII protected Tapia against discrimination for filing an informal union grievance in August 2001 and an EEOC charge in November 2001. The second prima-facie case requirement is that Tap ia prove that he suffered an adverse employment action. “An adverse employment action constitutes ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantlydifferent responsibilities, or a decision causing a significant change in benefits.’” Annett , 371 F.3d at 1237 (quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998)). Although what constitutes an “adverse employment action” is inherently a fluid and fact-based consideration, “a mere inconvenience or an alteration of job responsibilities will not suffice.” Id. at 1239 (quotations omitted). On appeal, Tapia argues that the district court inc orrectly found only one adverse employment action—the allegedly harassing b ehavior of his supervisors of following him and monitoring him while he was wo rking. He contends he also suffered two other adverse employment actions: (1) when he received the letter of instruction and (2) when he did not receive a tr ansfer. The City argues that none of these three constitutes an adverse employme nt action. We agree with the district court that sufficiently severe harassing, following, and monitoring of an employee could create an adverse employment2 While Tapia mentions this alleged adverse employment action in his

appellate brief, his actual argument focuses only o n the letter of instruction and requests for a transfer. -8- action. 2 Cf. Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1264 (10th Cir. 1998) (recognizing that co-worker hostility or reta liatory harassment if sufficiently severe may be adverse employment actio n). In this case, however, the evidence of Tapia’s being followed consists only of his own uncorroborated deposition testimony and nothing else. He asserts, for example, that Matson, Romero, or Archuleta followed him, although this oc curred both before and after he engaged in protected activity. But Matson, Rome ro, and Archuleta deny his assertions. And none of Tapia’s co-workers provide d testimony to support these allegations. In short, no evidence in the record, apart from Tapia’s deposition testimony, supports his claim. Tapia’s unsupportedassertions, however, “carry no probative weight in summary judgment proceedings.” See Bones v. Honeywell Int’l, Inc. , 366 F.3d 869, 875 (10th Cir. 2004). His mere sub jective belief of discrimination was insufficient to preclude the grant of summary judgment.
Stover , 382 F.3d at 1074 n.2; see also Miller v. Auto. Club of N.M., Inc. , 420 F.3d 1098, 1122 (10th Cir. 2005) (recognizing plaintiff’ s own suspicions are insufficient to establish prima facie case). Also, Tapia asserts that Matson monitored his work, and that the monitoring humiliated him and caused him stress. S ome deposition testimony-9-

supports Tapia’s assertion that Matson asked other employees to monitor his work. Gerald Chavez, for example, testified that M atson had asked him a few times to check to see if water could be turned off when Tapia indicated that it could not be. Aplt. App. at 117. Another co-worke r, Elias Sanchez, also did so on two occasions. Id. In addition, Loretta Rael—a co-worker—testified at her deposition that Matson periodically checked Tapia’s work logs and made photocopies of them. Id. at 124. Also, Rael stated that Matson timed how l ong it took Tapia to get to a job and to complete it. Id. While the record is clear that Matson did monitor T apia’s work, the record is equally clear that Tapia did not suffer adverse employment action due to the monitoring. No change in his employment status occ urred: his job, pay and benefits at all times remained the same. See Annett , 371 F.3d at 1237 (requiring significant change in employment status for adverse employment action). Thus, under the circumstances presented here, the distric t court incorrectly concluded the harassing, following, and monitoring constitute d an adverse employment action. Next, Tapia argues that the letter of instruction c onstituted an adverse employment action by the City. He contends that the letter “[wa]s a per se act of harm to [his] reputation, humiliating, and dramatic ally adverse.” Aplt. Br. at 18. He further asserts that the letter resides in his p ersonnel file and could adversely3 Tapia maintains that his comment about knocking a s uperior’s head off was

not a verbal threat and the perception that it was a threat was flawed. Regardless of whether he intended to threaten anyone, his comm ent was reasonably perceived to be a threat. -10- affect his future employment. He characterizes the letter as discipline imposed within two weeks of his filing an EEOC charge. 3 It is true that warning letters and reprimands can be adverse employment actions. Medina v. Income Support Div. , 413 F.3d 1131, 1137 (10th Cir. 2005). “A reprimand, however, will only constitute an adve rse employment action if it adversely affects the terms and conditions of the p laintiff’s employment—for example, if it affects the likelihood that the plai ntiff will be terminated, undermines the plaintiff’s current position, or aff ects the plaintiff’s future employment opportunities.” See id. Like the district court, we cannot conclude that th e letter of instruction Tapia received constituted adverse employment actio n. The letter was not disciplinary. It did not affect his pay, benefits, or employment status. Cf. Heno v. Sprint/United Mgmt. Co. , 208 F.3d 847, 857 (10th Cir. 2000) (finding no ad verse action under similar circumstances). Indeed, he co ntinued to work for the Public Works Department, and the City subsequently approve d his transfer to another job, just as he requested. The fact that the lette r indicates that Tapia could be disciplined for a future threat is not enough to ma ke the letter itself disciplinary-11-

action. Cf. Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998) (deciding that unrealized threats do not rise to level of act ionable retaliation). Finally, the Public Works Department did not even receive notice of the EEOC action until two days after Tapia received the letter. Third, Tapia argues that the failure to transfer hi m to another job both in 2001 and after he filed his EEOC complaint and made other informal complaints were adverse employment actions. He contends the C ity delayed his transfer because he had made complaints. Also, he contends that the failure to transfer him resulted in a deterioration of his health and c aused him to be “humiliated and damaged.” Aplt. Br. at 20. To support his argument, Tapia points to a letter h e wrote to Ted Asbury, the head of the Public Works Department on July 23, 2002, requesting a transfer because he was harassed, monitored and discriminate d against for no good reason. The City, in fact, approved a transfer in response to this letter. Nothing in the record indicates that Tapia was denied a transfer a fter he sought a job for which he was qualified and for which the City was seeking applicants. See Amro v. Boeing Co. , 232 F.3d 790, 797 (10th Cir. 2000). The City’s failure to select Tapia for the utility technician position also was not an adverse employment action, because, as the d istrict court found, the position initially would have resulted in an immedi ate demotion for Tapia. Any4 Tapia does not continue to assert on appeal that th e alleged change in job

duties or the alleged continuing pattern of harassm ent after he returned to work from his FMLA absence were adverse employment actio ns. We conclude these issues are therefore waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (deciding that issue not raised in opening appellate brief is waived). Even if they were not waived, we conclude that the district court correctly decided that they did not constitute adve rse employment actions.

5 The City argues that Tapia included documents in hi s appendix that were not a part of the district court record. These doc uments are the EEOC determination and the right to sue letter. Under F ed. R. App. P. 30(a)(1)(D), these documents should not have been included in th e appendix. -12- future opportunities related to that job could not create an adverse employment action because those opportunities depended upon hi s completing certification and passing through training levels over a two to three year period. 4 Because Tapia has failed to establish an adverse employment action, he cannot establish a prima facie case of retaliation. We therefore conclude that the district court correctly granted summary judgment i n favor of the City. The judgment of the district court is AFFIRMED. 5

Entered for the Court

Timothy M. Tymkovich Circuit Judge